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[2005] NSWIRComm 317
Industrial Relations Commission (NSW)
2005-09-02
Haylen J
Original judgment source is linked above.
Industrial Relations Commission of New South Wales in Court Session
CITATION: Inspector Ruth Buggy v Hunter Area Health Service (now known as Hunter New England Area Health Service) [2005] NSWIRComm 317
PROSECUTOR: Inspector Ruth Buggy PARTIES: DEFENDANT: Hunter Area Health Service (now known as Hunter New England Area Health Service)
Occupational Health and Safety Act 1983 - s 15(1) - plea of guilty to amended Application for Order - assault of a nurse working alone in courtyard of psychiatric unit - competing objectives of patient care and rehabilitation not available to reduce defendant's duty to ensure safety of employees - defects in duress alarm system and security system - failure of system to comply with Australian Standard and Departmental Manual - lack of formalised handover to next shift with warnings of significant events and patient behaviour - workplace rules did not prevent one person working in area frequently occupied by numerous patients - systems not effectively audited - serious breach established - consideration of defendant's prior record - similar prior event calls for significant aspect of penalty to reflect specific deterrence - early plea to amended application for order - other subjective elements considered - costs - length of prosecution's cross-examination not sufficient to reduce order for costs - penalty imposed. CATCHWORDS:
R v Brett Raymond Walker [2005] NSWCCA 109) R v Shankley [2003] NSWCCA 253 at [31] R v Thomson, R v Houlton (2000) 49 NSWLR 383 Veen v The Queen (No 2) (1988) 164 CLR 465 CASES CITED: WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 (at 290-291)
PROSECUTOR: Mr M Joseph SC with Mr M Cahill of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES:
DEFENDANT: Mr B Hodgkinson SC with Mr M Shume of counsel SOLICITORS: Sparke Helmore
Matter No IRC 6942 of 2002 Inspector Ruth Buggy v Hunter Area Health Service (now known as Hunter New England Area Health Service) Prosecution under s 15(1) of the Occupational Health and Safety Act 1983
1 On 1 January 2001, Mr Geoffrey Peebles was working as a registered psychiatric nurse in the Kestrel Unit located within Morisset Hospital. Mr Peebles had extensive experience, having been employed as a psychiatric nurse for 30 years and had worked at the Kestrel Unit since it opened in 1993. In the late afternoon that day, Mr Peebles was assaulted by a patient while working alone in the large courtyard of the Unit. As a result of the assault, Mr Peebles was admitted to hospital briefly and then returned to work before being absent from work for approximately one and half days. Ultimately, Mr Peebles had 17 days off work, in broken periods, up until mid-November 2002 as a result of the incident. He has not required further time off work as a result of the incident and appears to have made a complete recovery. 2 As a result this assault on Mr Peebles, proceedings were commenced by Inspector Buggy alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983. At the time of the incident, Mr Peebles' employer was the Hunter Area Health Service but following amalgamation the defendant became known as the Hunter and New England Area Health Service, being the successor to the Hunter Area Health Service. An Amended Application for Order alleged that the defendant, under its new title, failed to ensure the health, safety and welfare at work of all its employees and, in particular, Mr Peebles, contrary to the provisions of s 15(1) of the Act in that the defendant:
The patient "BF", had been transferred to the Unit to prevent him continuing to abscond, to ensure compliance with his prescribed medications and to prevent access to non-prescribed and illicit drugs. During admission, there had been no display of violence towards other persons and Ms Stephens formed the view that his actions on 1 January 2001 appeared to be "impulsive".
34 In relation to staffing, at the time of the incident involving Mr Peebles the Unit was staffed by 44 fulltime equivalent employees on a 24 hour day seven days per week rotating shift system. Greater numbers of staff worked during the day with the night shift being designed to supervise the sleeping patients. The maximum staffing was said to occur between 8.00 am and 5.00 pm. On the day of incident, there were four registered psychiatric nurses, one surveillance officer and one hospital assistant on the shift looking after 26 patients in the Unit. The registered psychiatric nurses were all long term employees who had undertaken aggression minimisation training between May and October 2000. The surveillance officer was required to hold a current security industry licence and the defendant met the initial cost of training required to hold that licence. The surveillance officer had undertaken aggression minimisation training in June 1999. The hospital assistant on duty at the time was also a long term employee who held a current security licence and had attended aggression minimisation training in 1999. 35 In relation to the duress alarm system, the minicom system installed by Honeywell was regarded by the Department of Public Works as the best available when the Unit became operational in 1993. This system comprised of a personal duress alarm to be worn by staff members with 20 units being available, 11 fixed duress alarms and nurse alert buttons located in toilets and en-suites which registered at the surveillance office. It was a requirement for staff working at the Kestrel Unit to wear a personal duress alarm from 1993. Ms Stephens described how that system operated so that the surveillance office and the nurses' night station was aware when they were activated. On each shift, the surveillance officer was aware of the staff member who had a particular alarm and would announce over a PA system that a staff member had raised an alarm when they were activated. In relation to maintenance, Honeywell was contracted to provide monthly preventive maintenance and was on call to provide assistance when required. In addition to the personal duress alarms, clinical staff carried a two-way radio when leaving the Unit to escort patients on supervised ground leave and whilst in the east dining room. The two-way radio was also used to alert the Psychiatric Emergency Response Team that was used across Morisset Hospital to respond to psychiatric and medical emergencies. There were a number of policies and procedures laid down in relation to the duress alarm system developed by the defendant. This included routine weekly testing of the system, use of duress alarm systems by the staff, procedures for surveillance officers on activation of personal duress alarms and work practices in the event of a duress system failure. There was a duress alarm recording system sheet used for the purpose of weekly testing of the duress alarm. The PA system was upgraded in 2000 which involved the installation of additional speakers. In October 2000, a duress alarm working party was formed by the Mental Health Service with representatives of staff at James Fletcher and Morisset Hospitals. The working party conducted site visits, liaised with staff and independent consultants to identify the duress needs across both sites and to make recommendations. The working party ultimately recommended and supported the installation of a system that was installed at the James Fletcher and Morisset Hospitals in October 2001, after consultation with the Nurses' Association, the Department of Public Works and Services, staff at both sites, the Occupational Health and Safety Committee and following inspections and assessments of other organisations' operating alarm systems. The initial establishment cost of this system was $675,000 which was enhanced by an additional cost of approximately $131,000. There was a bi-annual maintenance programme as well as workshop repair and maintenance of the equipment. This system provided a "person down" function that identified where the alarm was activated within the range of the nearest infrared sensor. 36 The surveillance system was installed by Honeywell in the Kestrel Unit and commenced with 12 cameras. That system was enhanced in 1994 by the installation of three new cameras at a cost of $30,000; the installation of a multiplexer and associated recording equipment in 1998 at a cost of $13,000; the installation of additional cameras in bedroom corridors, dining rooms and gymnasium area at a cost of $15,000 in 2000; the supply and installation of two triangular safe cell housings with high performance cameras with new control switch hardware and multiplexer video recording equipment at a cost of over $20,000 in 2000; a new camera in 2001 at a cost of nearly $5,000 in the east courtyard; the supply and installation of a controllable camera in E block and an additional colour monitor in the nurses' day station in 2001 at a cost of nearly $15,000, and in November 2004 the installation of a digital video storage system to replace the VHS recording system at a cost of approximately $9,500. There was a maintenance contract with Honeywell to maintain the security and surveillance system at an annual cost of approximately $23,000. Ms Stephens said that at the time of the incident there were 26 cameras in operation and at the time of hearing there were 29 cameras, 27 of which were connected to the digital recording system. 37 In relation to staff training, upon commencement with the Area Health Service new employees were required to undergo orientation. Prior to commencing work in the Kestrel Unit, staff underwent Unit orientation including information in relation to the general environment, duress alarms in operation and interacting with patients. Safe operating procedures were also displayed within the Unit. The Area Health Service and Mental Health Service policies and procedures were kept in a folder in the nurses' day station. 38 Ms Stephens referred to the report book as a tool to convey to staff the daily shift developments, noting new admissions, patient discharges, adverse patient events, medication and other relevant matters. The report book was in operation before the incident involving Mr Peebles as was the communication book which was used to provide information to staff regarding patient clinical or staff issues. All patients' medical records were kept in the nurses' day stations and were available to staff to make entries. Since 2003 the shift handover process within the Unit had been formalised to ensure that all patients were reviewed at each shift handover. The shift handover was compulsory and all staff were to attend. Prior to 2001 there was a practice to informally discuss matters between shifts. The shift handover procedure required staff from the previous shift to document observations about patients, their legal status, their risk to others and to themselves. The shift handover procedure was reviewed by all incoming staff prior to any patient contact and staff signed the sheet to acknowledge that they had reviewed this information. An assessment was made by staff of the patients' "risk to others" and their "risk to themselves" using categories set out in the MHOAT documentation being classified as low, medium or high. 39 Ms Stephens gave detailed evidence as to the wide range of patient activities available, the times and places when they were available to patients in the Unit and emphasised the requirement for these activities to be monitored by the staff. Assessments were made as to the patients appropriate to participate in the various activities and to take account of the need to maximise the function and independence of patients and their self esteem. 40 At the time of the incident involving Mr Peebles, the defendant used an orientation system and an orientation booklet. That document referred to safe work practices and safety rules and was of general application. The document committed the defendant to support the rehabilitation of injured employees from occupational ill health "to the fullest physical, mental, social, vocational and economic usefullness of which they are capable". At that time, a "safe operating procedures" document was available in the Kestrel Unit which required all aggressive incidents to be reported and required staff not to enter areas alone where aggression, seclusion or segregation was occurring. Staff were to read the aggression manual, to ensure that they were familiar with the personal duress alarm system and be aware that it would not determine the wearer's location within the Unit and that it was therefore essential, when dealing with patients alone, to indicate the workplace destination and activities to another colleague or to surveillance. New staff were to receive a verbal handover at the commencement of each shift. The staff orientation booklet stated that, in the clinical environment of Kestrel, it had to be recognised that there was an ever present risk of assault from aggressive patients and that it was essential for all staff to take "whatever measures are appropriate to enhance their own safety and the safety of their colleagues". The likelihood of assault was to be calculated taking into consideration "all available information". The limitations of the duress alarms were repeated with the comment that it was essential for staff members to communicate their intended destination and activities to other staff members. 41 In oral evidence, Ms Stephens referred to a patient who came into the Unit in May 1999 on compulsory transfer from Long Bay Goal. That patient was initially placed in seclusion and spent lengthy periods of time in seclusion. Staff in the Unit attempted to integrate him into the ward but there were numerous aggressive incidents and assaults on staff and other patients by this person. Although the person was still in the Kestrel Unit his behaviour led him to be held in seclusion. 42 In cross-examination, Ms Stephens was unable to say how many aggressive incidents involved this particular patient but there were a number. In relation to patient treatment, the requirement for a handover meeting was formalised after January 2001 but Ms Stephens was unable to give the exact or approximate date when that occurred. The information she had in relation to the patient "BF" was obtained from his file and she accepted that his violent history in 1996 had relevance. She was aware from the file that the patient had assaulted other staff at another health institution but that was in 1996. On the day in question, during in the previous shift the patient had been observed as being agitated and delusional in the sense of hearing voices: the patient had, however, been delusional and hallucinating throughout his entire admission. A notation in the patient's file that he was agitated and hearing voices did not necessarily suggest that his assaultive behaviour was predictable rather than impulsive. Those entries did not predict a change of behaviour and a consideration of the whole of the file would suggest that every two or three days the patient would have been subject to very similar entries in his medical file. Ms Stephens would nevertheless have expected a change in the patient's behaviour to have been spoken about on that day or the following day. 43 Ms Stephens was aware of the standard known as "Safety and Service, the Minimum Standard for Health Care Facilities" produced in September 1998. She accepted that when she started with the Kestrel Unit in July 2001 she made no attempt to determine whether there was compliance with that standard at that stage, nor had she known or did she know of anyone who had done anything to ensure that the new standard had been complied with at the Kestrel Unit. Ms Stephens understood that Honeywell had conducted both proactive and reactive maintenance on the duress alarms at Kestrel, but that was an understanding she had rather than anything contained in a document from Honeywell. Besides the multidisciplinary meetings which had been formalised after January 2001, the shift handover process had been formalised since January 2001; in fact, it took place in November 2003. Prior to implementation, there were various means of trialling the best way to perform a formal handover process although Ms Stephens could not say precisely when that trialling took place. She did not have any documents that indicated the nature of that trialling nor what was involved. She was unable to say why it took until November 2003 to formally implement the procedure for Unit shift handovers. She was aware that in June 2000 an incident involving an assault on a staff member in the Unit led to an operational debrief which highlighted inconsistent communication within the Unit and the need for an increased emphasis on reviewing the Unit environment at the afternoon handover so that informed and safe decision making could occur. 44 Mr Graeme Davies was employed by the Area Health Service as the Prevention and Management of Violence and Aggression co-coordinator for the Hunter New England Mental Health Service. Mr Davies had trained as a registered nurse and had worked in a number of units at Morisset Hospital including Kestrel. 45 In early 2001 and at the time of the incident involving Mr Peebles "aggression minimisation training" was provided to Area Health Service employees. Mr Davies was involved in facilitating the delivery and ongoing evolution of that training package. There was a two day course for the provision of this training which formed part of the orientation for new staff to the Mental Health Service. A large number of topics were covered in this course including the assessment task, legal issues, factors which promote violence, the aggression cycle, communication, the cycle of emotion and controlling the situation, strategies for gaining control, crisis negotiation, release techniques and when to use physical intervention and the levels of physical intervention and chemical intervention. During 2001, the Mental Health Service determined that additional and more extensive training should be provided to staff on aggression minimisation, prevention and management and in conjunction with Mr Dickson, Senior Tutor from the National Control and Restraint General Services Association of the United Kingdom, a new course was developed entitled "Prevention and Management of Violence and Aggression". Mr Dickson was regarded as an expert in aggression minimisation. He attended Australia in August 2003 to provide training to 11 selected Mental Health Service employees which was designed to equip those employees with the capacity to train other employees in the new system. There was an eight day training course and all participants gained certification as tutors through the National Control and Restraint General Services Association. 46 Mr Davies said that the aim of the Mental Health Service in committing to this training was to ensure that staff were provided with the most comprehensive and up to date training available. The training was designed to provide employees with knowledge, awareness, tools and techniques to use in the prevention and management of violent and aggressive patients so as to minimise injuries to staff and patients and to enable a patient to be treated humanely and with dignity. The Kestrel Unit was identified as a priority area requiring training. The clinical staff in the priority areas were provided with training within the first 12 months of its introduction and Mr Peebles undertook that training. The training was then gradually extended to other clinical staff within the Mental Health Service. At the time of giving evidence, Mr Davies said that training had been provided to approximately 300 clinical staff in a four day course and separately as part of the orientation programme. There was a four hour programme provided to approximately 260 new employees. 47 In February 2005, the Mental Health Service had invited Mr Dickson to return to Australia to provide a further 10 day training programme to six of the previously trained tutors so that they could obtain the tutor/trainer qualification and become instructors. The instructor qualification enabled those persons to provide training to other organisations, to develop packages specific to the needs of those organisations and to enable those organisations to have persons trained from within their own staff to deliver this training system. In relation to the philosophy of the new training, Mr Davies noted that it was to improve awareness and assessment of potential for violence, the prevention of violence, to provide an efficient, effective and safe response to an emergency where a staff member's personal safety had been threatened or compromised by actual or potential assaultive behaviour, to introduce improved controlled restraint techniques and to increase critical post-incident examination to enable a continuous improvement in the environment. The programme was balanced with the philosophy of caring and providing appropriate treatment for patients and to provide the necessary tools for staff to manage overt aggression and violence within a therapeutic framework. Training was intended to reduce the risk to employees as a result of contact with violent and/or aggressive patients. The training was mandatory for Mental Health Service staff working in acute inpatient services and was to be expanded to staff who had contact with patients whether they were inpatients or cared for by community health teams. 48 In Mr Davies' view the response from those who attended the training had been positive and staff had been receptive to the concepts included in the package and to the outcomes achieved as a result of the training. Since the introduction of the training, the number of injuries sustained by staff during the restraint of patients had decreased and the number of hours lost had decreased from 285.2 to 113.4. The costs associated with the implementation and development of the PMVA was approximately $500,000 to date. The training appeared to have become known to other organisations that had made contact to obtain details. From information available it appeared that prior to 2003, there had been 125 individual incidents of violence or aggression towards nursing staff during the year 2002; 22 incidents resulting in lost time due to violence and aggression in 2002 and 2,691 nursing hours lost during 2002. The material showed that the majority of lost time injuries were due to violence occurring during a restraint procedure. In cross-examination, Mr Davies said that prior to 2005 he had come to the view that something needed to be done in relation to aggressive behaviour and violence during restraint procedures. From the material that he had seen he had formed the view that there were many aggressive incidents that occurred which were not reported and auditing was difficult. A number of graphs attached to Mr Davies' affidavit supported his view that aggression could be minimised by training. The training began in 2004 and it was only after 6 months that there were sufficient trained staff to make an assessment of the effectiveness of the training. He believed that approximately 85 per cent of the Kestrel staff had been trained since the inception of training in February 2004. 49 Mr Anthony Druce was the Hunter New England Mental Health Service Information Programme Development manager. He had commenced employment with the Area Health Service in 1983 as a registered psychiatric nurse. He stated that in his present role he was responsible for the collection of Community Ambulatory data for the Mental Health Service, the MHOAT data and any other information collection as required by the Service. In his evidence, Mr Druce dealt with statistical documentation relating to aggressive incidents between January 2000 and January 2001. He stated that the aggression data was developed by the Mental Health Service in 1995 so that clinical services at Morisset Hospital could review statistical data collected from patient displays of aggression. The data base could be used to monitor the frequency and severity of aggressive incidents. Aggression had been defined and categorised, for the purposes of data collection, as verbal aggression, physical aggression against objects, physical aggression against self and physical aggression against other people. Each category had been broken down into four sub-categories in ascending order of aggression. A scaling system had been developed by experienced clinical staff working at the Kestrel Unit in early 1995 and Mr Druce explained how, through the workshop approach, that system had been developed. A description was given of the use made of the Morisset Hospital overt aggression scale form and the circumstances in which it was completed. Mr Druce stated that, from the information contained in the form and placed in the aggression data base, a basic "suite of reports" was available showing aggression of incidents analysed by user specified variables such as time of day, location or date. He said that the report most commonly used by clinicians was the patient indices report graphing the patient's level of aggression and level of intervention over a specified period of time and incident by incident. He said that a report in this form had been useful in showing trends of behaviour in response to interventions for individual patients. Clinicians had used this type of report to assist in managing challenging behaviour and it informed clinicians whether past interventions were having either a positive or negative influence on a patient. 50 It was Mr Druce's view that, while the system had been of great assistance in identifying trends and analysing specific patient behaviour, it could not be used as "a predictive tool". To be used in that way would require a minimum of 12 months' data in order to identify and interpret trends. A report of quarterly total counts of aggressive incidents from the fourth quarter of 1995 to the third quarter of 2005 in the Kestrel Unit, using a linear trend line over the ten year period, demonstrated a decreasing level of aggression in the Kestrel Unit. A further report of quarterly total accounts of aggressive incidents from the fourth quarter in 1995 to the third quarter 2005 in the Kestrel Unit, using a moving average trend line over the ten year period, demonstrated the decreasing level of aggression in the Unit. 51 Mr Druce stated that aggressive behaviour was difficult to predict because of the number of variables influencing an incident and the interaction of these variables were complex and diverse. The data was able to be aggregated to analyse inpatient population behaviour over time. Managers still utilised the reports to check that changes made in the environment were having some impact. Unlike individual patients, populations such as the patients residing in a ward were slow to demonstrate changes in trends. Reports dealing with aggressive incidents where physical violence occurred, being a sub-set of the previous reports, nevertheless showed on a linear trend line over a ten year period a decreasing level of physically violent incidents at the Unit. Similarly, a report using a moving average trend line over the 10 year period demonstrated an increasing level of violent incidents in the Unit. 52 In cross-examination, Mr Druce accepted that, depending on which combination of years was looked at, the trend line could go up or down. The trend line was able to go down with the inclusion of the data in 2001. The inability to use the results from the data base as a predictor of future behaviour was a reference to the treatment that might be adopted in relation to individual patients. Mr Druce was unable to say if the data base material was put before any occupational health and safety body within the hospitals so that they could look at safety issues rather than treatment. Mr Druce also confirmed that the data base, since 1995, was able to identify acts of aggression taken by individual patients and, for example, was able to identify the number of aggressive attacks in the courtyard area in the afternoon and that this material was available prior to 2001. The material was collected in the data base right from the beginning so that amongst other things the material could be used to identify possible higher risk areas within the Unit. The trend lines produced for the ten year period could go up or down depending on which part of the period was chosen. In any event, Mr Druce could not comment as to why those lines would go up or go down because they could be due to a number of factors and his work dealt with the figures reported. SUBMISSIONS 53 Senior counsel for the prosecutor handed up and spoke to extensive written submissions. Because of its prior record, the defendant faced a maximum penalty of $825,000. Assessment of an appropriate penalty was to take place against the background that the defendant was responsible for the operation and management of the Kestrel Unit which the defendant recognised housed patients who represented a significant risk to themselves or others or demonstrated aggressive or anti-social behaviour. 54 From the time of the construction of the Unit, the duress alarm system (both fixed and mobile) installed as part of the Unit's aggression management/occupational health and safety systems did not provide a tracking/location capability or a "person down" capability. When an alarm was activated, those responding were required to locate the person seeking assistance by being guided by the Unit's surveillance officer observing the location of the incident on the closed circuit television system and/or by reference to noises and/or other indications suggestive of location of the incident. In September 1997, the Australian Standard stated that alarms may be necessary for personal security for people who because of their duties, may be subjected to violent acts. Critical to the effectiveness of any duress alarm was a speedy, reliable and competent response. It was imperative to the successful operation of such a system that there be a means of quickly communicating the precise location of the alarm to the response agency. 55 Besides the 1997 Australian Standard, in September 1998 the Department of Health Safety and Security Manual, that applied to Morisset Hospital in total including the Kestrel Unit, made provision for the adoption of a risk management approach to safety and security in health facilities and in particular in high risk areas such as mental health services. Such health care facilities were to take systematic and co-ordinated action to reduce the incidence and severity of assault: the Manual provided guidelines for identification of areas of risk to staff, patients and visitors, the identification of patients who had potential for aggressive behaviour, factors that may trigger an outburst, ensuring local policies and procedures were in operation and that staff were fully aware of them, ensuring that staff were appropriately trained and that ongoing needs for training were identified. In relation to duress alarm systems, the Manual stated that every health care facility was to establish its requirement for installation and regular review of its alarm systems to ensure that staff members whose duties may expose them to risk of violence were safe and that a review of all alarm systems occur as part of regular security surveys. 56 It was not contested that, after the publication of the Manual in 1998, the duress alarm system at Kestrel did not comply with the requirements of Chapter 13. In particular the system did not require either a "man down capability" or any location/tracking capability. There was no mechanism for identifying low batteries between weekly checks, registration of false alarms, a failure to provide replacement units while units were sent away for repair and there were insufficient personal duress alarms to enable all staff members to carry such an alarm when there were extra staff on duty. The requirement for the facility to conduct a yearly security survey inspection was not complied with: the last such survey had been conducted in mid-February 1998 before this incident in January 2001. The survey was submitted to be general in nature and did not include an assessment of the actual function of the alarm system within the Unit and whether it complied with the requirements of Chapter 13 of the Manual. It was submitted that Chapter 13 of the Manual, despite its perhaps misleading heading, by reference to its content, clearly applied to alarm systems within the Unit. By June 2000, the defendant had been informed by the Nurses' Association that the system installed at the Unit did not comply with the relevant standards set by the manual. 57 In August 2002, three improvement notices had been issued to the defendant in relation to the Kestrel Unit. These notices dealt with the Unit's procedures for the investigation of accidents and incidents, including the implementation of controlled measures identified as necessary; ensuring that the surveillance cameras covered all areas of work in the Unit and ensuring that adequate emergency response systems were in operation in the Unit. In response to those notices, the defendant reviewed the safety and security of the Unit including the operation of the duress systems. The review, conducted by Mr Woolmer, recommended that a duress alarm system including tracking and location, be installed in the Unit consistent with both the pre-existing requirement of the Australian Standard and Chapter 13 of the Department's Manual of 1998. Following Mr Woolmer's recommendations, a working party was established to identify the duress needs across both sites and to make recommendations to the Hunter and New England Mental Health Service. The defendant was well aware of the flaw in its systems because the evidence showed that the safe operating procedures placed in the Unit prior to the incident involving Mr Peebles referred to duress alarms and warned staff that the system would not determine a staff member's location within the Unit and why it was therefore essential, when dealing with patients alone, for the staff member to indicate the destination and activities to a colleague or the surveillance officer. 58 A duress alarm system which complied with the requirements was not installed in the Unit until October 2001. Ms Kennedy conceded in her evidence that the delay in identifying the relevant defects in the system and rectifying those defects extended from September 1998 until about October 2001. 59 As at January 2001, the defendant had not conducted audits on the systems of work said to be in operation within the Unit for ensuring the safety of its employees including prevention or minimisation of the risk of assault. The defendant had not maintained a system of work for the preparation and conduct of shift handovers designed to ensure that the status of all patients in the Unit was discussed and there was not a system to ensure that incoming staff on all shifts were informed or alerted to the status of patients including patients whose behaviour may have indicated an increased risk of aggression. At the time of this incident the defendant did not require staff to attend shift handover meetings and when Mr Peebles commenced his afternoon shift on 1 January 2001 there was no formal shift handover meeting held. The defendant did have in place an informal policy that handovers were to occur verbally and that essential communications between staff be recorded in a communications book which staff were requested to read daily. The defendant however did not have in operation any system designed to ensure and/or confirm that staff in fact undertook verbal handovers and/or the communication book was read before the staff commenced work in the Units. A formalised and documented shift handover system was introduced after the incident involving Mr Peebles. 60 Mr Peebles was informed that there was a new patient in the Unit but he was not provided with any details of that patient's history or of the patient's mental status: Mr Peebles was not informed before he commenced work in the Unit that day that the new patient had a long history of mental illness involving significant acts of violence and aggression including a history of having stabbed a staff member at a clinic in 1996. He was not advised that this patient had been reported as suffering hallucinations (hearing voices) as recently as 29 January 2000. Further, the defendant had not identified the two courtyards in the Kestrel Unit as areas of risk to staff as required by the 1998 safety and security manual and had not put in operation a safe working procedure to ensure that when patients were present staff did not enter the courtyards on their own. There was information available to the defendant that identified the courtyards in the Unit as areas of high risk well prior to this incident: the means of reducing that risk was simple and obvious. In particular formalisation and enforcement of a work practice requiring staff not to enter the courtyard on their own. Mr Miller's review following the incident, by reference to statistics maintained by the defendant, disclosed that there was a particular risk of aggressive behaviours including assaults occurring in the courtyard of the Unit in the afternoon. Mr Miller then imposed a formal safe work policy requiring staff members not to enter the courtyard on their own whilst patients were present. Mr Miller's review also disclosed that the duress alarm system was subject to "black spots" where the alarm units did not operate effectively. Mr Miller introduced work practices which required staff to work in pairs in those areas that had been identified as black spots and for one staff member to carry a two-way radio. There was no explanation given for the delay in the introduction of the formalised and documented shift handover procedure which was not in operation until November 2003. Despite the wealth of evidence, it was submitted that the Court could not have confidence that relevant information regarding changes in the status of patients were identified, recorded and/or communicated as part of the new shift handover procedure. 61 In relation to the principles applicable to the sentencing process, it was relevant that in the present case the risk of patient assault was an obvious and known risk that carried with it the potential for grave injuries. It was noted that in Ms Kennedy's affidavit evidence it was stated that, while the aim of the defendant was to reduce and control the risk of aggressive incidents towards staff, it was not always possible to do so and that this was the direct result of the need to have face to face contact with patients for the purposes of their care, treatment and rehabilitation. For the prosecutor, it was submitted that it was inconsistent with the requirements of the Occupational Health and Safety Act that an employer permit its employees to be the subject of physical assault or repeated physical assaults by patients. An employer was obliged to take all reasonable steps to obviate the risk of assault or, where it was not possible to eliminate the risk, to minimise that risk. The obligation imposed by the Act has been regularly observed by the Court to be absolute and subject only to the defences set out in s 53 of the 1983 Act. 62 No answer was provided by the defendant suggesting that, even if proper systems and training were in place, that the incident may have occurred in any event. That approach had been firmly rejected by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 (at 290-291). In this particular case, the defendant by its plea of guilty acknowledged that it failed to fulfill its obligations under the 1983 Act to its staff in general and in particular to Mr Peebles. Here the breaches of the Act were compounded by the fact that the defendant not only failed to meet its obligations under the Act but failed to comply with the Department's 1998 manual, namely: · in failing to identify the courtyards in the Unit as an area of particular risk to staff; · in failing to put in place a formal policy and procedure regarding the attendance of staff on their own in the courtyards in the Units while patients were present; · failing to ensure that all staff, including Mr Peebles, were aware and complied with the policies regarding the attendance of staff on their own in the courtyards in which patients were present; · in failing to ensure that the duress alarm system in the unit complied with the requirements of Chapter 13 of the Manual, in particular in reaction to the provision of a tracking/location capability and person down capability; and · in failing to conduct annual security audits including an audit/testing of the duress alarm system and of systems of work dealing with the elimination and/or control of the risk of patient assault on staff members working in the Unit. The gravity of the underlying risk being potentially grave physical injury and the fact that the patterns of patients suffering from mental illness were so unpredictable served to highlight the nature and extent of the risk. These factors highlighted the need for all Area Health Services involved in the delivery of inpatient psychiatric services including the defendant to adopt a greater degree of vigilance and proactivity in identifying and eliminating the risk, in risk management policies and programmes and flaws in essential plant/equipment associated with safety such as duress alarms. 63 The prosecutor accepted the efforts made to rectify these identified shortcomings although on the evidence it was suggested the Court should have reservations as to the effectiveness of changes introduced well after the accident, given the concessions made in cross-examination of the defendant's witnesses. In any event, all the steps taken by the defendant were readily available to it and could have been taken before this incident involving Mr Peebles. General and specific deterrence were both to be given consideration in setting the penalty. 64 It was accepted by the prosecutor that the defendant was entitled to the benefit of subjective factors that tended to mitigate the objective seriousness of the offence. In this regard, the defendant was entitled to the benefit of its contrition and noted that a plea of guilty may attract a greater degree of leniency where the Court is satisfied that the plea of guilty reflected contrition on the part of the defendant. The defendant was also entitled to a discount in respect of its co-operation with the WorkCover Authority in the investigation of the incident and, because of the utilitarian value of the plea was entitled to the application of the principles discussed in the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383. 65 The substance of the defendant's submission was that it had substantial systems in operation to address the possibility of aggressive and assaultive actions by patients and that insufficient attention had been paid to these matters in the prosecutor's submissions. For instance, while the defendant had accepted by its plea that there was no formal handover process to those commencing their shift, there certainly was an exchange of clinical information as part of general nurse training and, in fact, Mr Peebles spoke to others and read clinical notes to inform himself about the patients. The psychiatric nurses working in this Unit were very experienced and, like Mr Peebles, many had experience of the Unit since its establishment. That experience was particularly significant in the clinical assessment and handling of the type of patients allocated to the Unit. 66 In relation to the patient "BF", the evidence demonstrated that, upon introduction to the ward in mid-December 2000, that patient was completely assessed both as to his past and present circumstances. There was an assessment in the order of three pages identifying a number of aspects including medication, patient history including identified problems such as delusions and hallucinations, and stated that "BF" was to remain on medication as usual with a review of the medications. "BF" was not to be given leave and it was noted that he remained delusional. Importantly, "BF was not identified as being a risk to himself or to others. "BF" was then the subject of a team meeting and two doctors assessed him on 18 December 2000. He was also seen by a social worker on a number of occasions. On a number of days there were no entries indicating that there was any significant event. Significantly, there was no entry in these records between 29 December 2000 and 1 January 2001 apart from administration of additional drugs on 29 December 2000. There was no note indicating a level of agitation although, prior to this, agitation had been observed and recorded. These procedures and practices were in operation and, although they were not formalised such as to constitute a regime, they were nevertheless part of the usual process. The evidence showed that there was a report book where clinical problems were recorded and which Mr Peebles consulted prior to commencing his shift. 67 It was accepted that Mr Peebles was not told sufficient about of the history of "BF" to allow him to make his own assessment and to take necessary precautions until he had fully made that assessment. The point was that there was nothing in the records immediately before the incident that would have alerted Mr Peebles of behaviour that might have developed into aggressive or assaultive behaviour. 68 In relation to the inadequacy of the system in not requiring two persons to be in the yard, the investigation after the incident did demonstrate this area as one where assaults could take place and the defendant had accepted that deficiency by its plea to the charges as particularised and as described in the Statement of Agreed Facts. The context in which this matter had to be considered was that, in other cases considered by the Court, assaultive behaviour and aggression occurred when there were three nurses present. The defendant's reaction of now requiring two members of staff to be present in the courtyards should be seen as a positive development but could not be used to show that two persons present in the yard would have prevented or avoided aggressive/assaultive behaviour. 69 In relation to the duress alarms, Ms Kennedy's evidence was to be accepted, namely, that she had formed an honest belief that the Health Department Manual did not apply to the Unit because of its terms. That view was accepted as a mistake in relation to alarms but there was no doubt that other aspects of the Manual applied to the Unit and were implemented. Importantly, nothing in the Manual dealt with a dual system such as operated at the Unit which had an internal duress alarm system and a surveillance system in addition, with the two systems operating together to identify any trouble. That system did identify Mr Peebles as being in difficulties on the day of the incident. Mr Peebles did activate his personal duress alarm and within 60 seconds assistance was provided to Mr Peebles. In addition, in this case, by June 2000 there was an awareness that the Manual applied and a committee was established. The defendant wished to obtain the views of the staff including the type of system that should be adopted, yet this measure was criticised in the prosecution address. While there were internal criticisms that consultation may have taken too long, nevertheless the defendant had in operation a dual system, was reviewing that system and was taking extensive steps to consult the staff directly affected by the system. 70 In relation to audits of the system, the defendant had accepted that they were not carried out. However, the absence of all audits did not carry the necessary implication that there were no systems in operation. There was a clinical recording system, there was a duress alarm system, there was training in aggression minimisation and there was collection of data. 71 In relation to costs, the defendant did not oppose an order as to costs but submitted that the costs order should be limited to the cost of a one day hearing. The extent of prosecution cross-examination had led to the case being unnecessarily extended: it was a case that could have and should have been completed within a day. DELIBERATION 72 I have set out the terms of the Agreed Statement of Facts in this matter - itself a document of substance. I have also set out in some detail the evidence and submissions of the parties. Having taken those steps I intend, as succinctly as possible, to deal with the issues that are raised. 73 In dealing with the objective seriousness of the offence, I accept the defence submission that the context in which this offence took place needs to be considered. That context includes the substantial processes and procedures, even where not formalised, that operated at the Kestrel Unit. This was not a case where no attention had been paid to the requirements of occupational health and safety but was one where there were serious gaps in the system of work having regard to the nature of the undertaking. I accept therefore the general thrust of the defendant's submissions in relation to those matters. 74 In addition to those matters, the defendant makes the following points: the surveillance system functioned as it was designed to do and the alarm as to the danger in which Mr Peebles was working was activated at a very early stage of the patient showing aggression; despite the "black spots" and identified difficulties, Mr Peebles was able to activate his personal duress alarm and assistance was rendered within 60 seconds of the assault commencing and concluding; there was an effective system of recording patient behaviour, which occurred in this instance but revealed nothing to put the nurses on alert; and, there was effective communication between nurses and administration as to patient medication and significant events. 75 Given the mitigating effect of these issues, the acts and omissions to which the defendant has pleaded guilty nevertheless establish an offence of significant seriousness. The Kestrel Unit was established to take, amongst others, acutely mentally ill individuals requiring a secure environment usually because they represented a significant risk to themselves or others as well as individuals demonstrating aggressive or anti-social behaviour. This type of behaviour was therefore not out of the ordinary nor to be regarded as unexpected, although exactly when staff may have to deal with this type of behaviour I accept could not be predicted with mathematical precision. Caution and vigilance were required to permit the proper treatment and rehabilitation of these patients while at the same time ensuring the safety of staff. The 1997 Australian Standard entitled "Security for Health Care Facilities Part 2: Procedures Guide" spoke about duress alarms being used to protect people whose duties might lead them to be subjected to violent acts: the duress alarm however had to be speedy, reliable and provide a competent response. There had to be a quick communication of the precise location of the alarm. This requirement seems to be consistent with the Department of Health's September 1998 Manual which regarded Mental Health Services as high risk areas. This Manual urged the taking of steps to reduce the incidence and severity of assault and suggested how that might be achieved. There were to be alarm systems installed with regular reviews to be conducted in order that staff might complete their duties in safety. The alarm system in operation in the Kestrel Unit at the time of the incident involving Mr Peebles did not meet these well known requirements, as has been accepted by the defendant. The defendant pleads guilty to a quite comprehensive failure in the systems it adopted to address the safety of staff in a facility of this nature. 76 I accept the prosecutor's submission that the risk of patient assault was an obvious and known risk that carried with it potential for injury and possibly quite serious injury. I do not regard the rehabilitation objectives of the defendant as diminishing in any way its duty under the Occupational Health and Safety Act, to ensure the health and safety of its employees and others at its place of work. The requirement for close contact between staff and patients, the emphasis on rehabilitation and the proper care of psychiatric patients does not automatically mean that either the level of care provided to patients or the level of safety provided to staff is to be diminished. I do not pretend that achieving these dual purposes is necessarily easy but I am unable to accept the defendant's evidence and proposition that in some way the requirements of these patients are such that staff must accept that they will be subjected to aggressive, assaultive behaviour with attendant injury. It is one thing to know of the existence of such behaviour and the likelihood it will occur from time to time but it is another matter to simply acquiesce in its occurrence. A civilised and humane society is obligated to strive to ensure that these two, often competing, objectives are secured. 77 In the present case the failures of the system were significant. I am satisfied that the evidence established that there was not an effective system to monitor the operation of the duress alarm together with the public address and surveillance system. There were undetected black spots in the operation of the system and there were inadequacies in the way in which staff were informed about the potential danger of the current patients. Much was made of the fact that the informal system of recording and handover in the few days before the incident involving Mr Peebles did not disclose any unusual behaviour that might have placed a person in Mr Peebles' position on notice of possible assaultive behaviour. The evidence, however, discloses that unexpected aggressive behaviour, in the sense that it could not necessarily be predicted, was part and parcel of patient behaviour in the Unit. If Mr Peebles had been aware of the totality of "BF's" history, he would then have been in a position to make his own assessment over time, as to the caution required in dealing with that patient. He would have been in a better position to assess whether he should have entered the courtyard alone when "BF" was present: he could have waited until a second nurse completed other duties before proceeding to serve afternoon tea. The defendant's submission that the mere presence of more than one nurse would not necessarily prevent assaultive behaviour on one level ignores the reality of the relative imbalance of numbers should a patient contemplate an assaultive attack, and on another level, failed to properly consider the capacity of a number of people to quickly subdue an aggressive patient without the prospect of serious injury. Force of numbers alone might from time to time persuade patients against assaultive behaviour but the nature of their illness may not lead to such a result. Ultimately, the defendant's obligation under the Occupational Health and Safety Act in this regard is met, in part at least, by having sufficient people in attendance where there are groups of patients to ensure that an aggressive and abusive patient can be quickly subdued and controlled without putting the staff at risk of injury. 78 It is of significance that data already in the hands of the defendant prior to the incident involving Mr Peebles indicated that the courtyards were a high risk area for assaultive behaviour. In addition, six months before that incident the defendant was aware that its duress alarm system did not comply with the September 1998 Department manual. While these matters were subsequently addressed by the defendant, as the evidence indicated, there is substance in the prosecutor's submission that, for reasons that are ultimately unexplained the responses could not be appropriately described as speedy: the defendant bore the onus of establishing to the civil standard the matters on which it relied to mitigate the seriousness of the offence. I am satisfied that there were aspects of the prosecutor's cross-examination that demonstrated a certain lack of timeliness about the defendant's response. I do not mean by this observation to suggest that the defendant was not genuinely motivated in taking these steps but, rather, there was a lack of urgency about the response considering its obligations under the Occupational Health and Safety Act. The fact that it was desirable and necessary to have consultation with the staff about these measures and that funding had to be obtained does not, by themselves, establish why these steps took so long. 79 In light of the evidence, I am satisfied that the plea of guilty entered by the defendant to the amended charge under s 15(1) of the Occupational Health and Safety Act 1983, as particularised in that Amended Application, was properly entered. I also conclude that the risks to staff safety exposed by the incident involving Mr Peebles were serious risks involving the possibility of quite serious injury. In those circumstances, the defendant must be regarded as being in serious breach of the Act. 80 The defendant has four previous convictions, all involving s 15(1) of the 1983 Act. The lowest fine imposed was a penalty of $15,000 ordered by the Chief Industrial Magistrate in mid-2000. The defendant has three prior convictions and penalties imposed by this Court in mid-1999, December 2003 and March 2005: those convictions involved penalties of $25,000, $46,900 and $97,500. In 1999, Justice Peterson imposed a penalty of $25,000 on the Hunter Area Health Service in relation to the emission of a gaseous substance from a boiler at the Newcastle General Hospital that passed through the air-conditioning system into a number of areas including an operating theatre. In March 2005, Justice Staunton imposed a penalty of $97,500 after making substantial discounts amounting to 35 per cent. This offence again related to the Hunter Area Health Service but prior to its amalgamation and dealt with the operation of a boiler by a person who did not hold relevant certificates of competency and the failure to ensure that certain equipment was appropriately tested before installation and re-commissioning. It can be readily seen that these two offences are distinctly different to the offences under present consideration. 81 The 2003 judgment of Justice Schmidt dealt with failures arising in a unit of the Thwaites building of the James Fletcher Hospital and concerned the lack of an effective PA system and telephone system in circumstances where three nurses, caring for 17 patients with psychiatric illnesses, were subjected to aggressive behaviour by a patient. Those events took place on 3 July 2000. The deficiencies in the communication system did not prevent assistance being rendered within 25 or 30 seconds of the commencement of the aggressive/assaultive behaviour. A weekly test of the communication system had shown a defect that was not repaired the same day but was left to be finalised on the day following its detection. The defect meant that the three nurses under attack were not aware whether their activation of duress alarms had been picked up by other staff but, as Schmidt J pointed out, that fear was allayed within approximately 30 seconds of the commencement of the incident. The three nurses nevertheless sustained some injuries, requiring one of them to be absent from work for four days, another being absent for three and half days while the third did not require any time off. 82 In the case before Schmidt J, evidence was given of the expenditure of $2.5 million by the defendant to review and assess safety systems after the WorkCover Authority had issued an improvement notice in 1999. That evidence was given again in the current proceedings. Also before Schmidt J, evidence was given by the defendant regarding the objectives of the treatment of psychiatric patients and their rehabilitation and how these objectives could be compromised unless there was a close relationship and contact maintained between the staff and patients. The same evidence was given in the present proceedings. The overall upgrade of these communication systems with duress alarms with a man down facility and a location facility arose from the same review and steps taken by the defendant in the present matter to upgrade these facilities in 2003. It was in these circumstances that Schmidt J regarded the breach as being of less seriousness than other assault cases occurring in the Department of Community Services and other Area Health Services, and the penalty of $46,900 represented a penalty reduced by some 33 per cent. 83 The existence of a prior criminal record does not increase the objective seriousness of the offence committed: however, the factors of retribution, deterrence and protection of society may indicate that a more severe sentence is warranted (see R v Shankley [2003] NSWCCA 253 at [31] expressing the principle in Veen v The Queen (No 2) (1988) 164 CLR 465; adopted in R v Brett Raymond Walker [2005] NSWCCA 109). In the present case, the defendant continues to operate a psychiatric unit containing patients who, from time to time, will demonstrate aggressive and assaultive behaviour. The rehabilitation objectives of the treatment will continue to require close association between the staff and the patients. The similarity of the offence dealt with by Schmidt J and this offence requires that specific deterrence should be a significant element in the setting of an appropriate penalty in the matter now before the Court. The principle of general deterrence is also of some significance considering the various agencies, including Crown agencies, that are engaged in caring for people suffering from mental disabilities and the risk that exists of aggressive and assaultive behaviour against the staff who care for them. 84 The following matters also deserve some comment: (a) the expenditure of $2.5 million in 1999 to review and assess the Area Health Service's safety systems does not appear to have detected any deficiency in the duress alarm system in the Kestrel Unit nor that the system complied with neither the Australian Standard nor the Departmental Manual. Had this 1999 review dealt with these matters, the defendant's response to the report would have been of significance in its plea: there was no such evidence; (b) the defendant was aware of deficiencies in communications, both as to patient behaviour and in the operation of the alarm system because of two events which took place in June and July 2000. The defendant's evidence did not establish an acceptable basis for not having rectified these problems prior to the 1 January 2001; (c) prior to the January 2001 incident, the duress alarms were checked for defects once a week but there was no method of identifying low batteries in the interim, the system registered false alarms, and when defects were detected in the personal alarms they were sent for repair without replacements being made available; (d) there was a lack of regular audits of the alarms and the security system and this occurred over an extended period of time and in breach of the Departmental Manual; and (e) the steps ultimately taken by the defendant to address these risks were simple and easy to implement. 85 In relation to subjective factors, I accept that the circumstances surrounding the plea entered in this matter involving the discontinuation of related proceedings and the amendment of the application for Summons to which the defendant immediately entered a plea of guilty can properly be regarded as an early plea warranting the full measure of discount available for its utilitarian value. I therefore propose to discount the penalty by 25 per cent. 86 I also accept that the steps taken by the defendant to address the defects in its systems of safety and its early plea are evidence of its contrition as is the counselling offered to staff following this incident. The defendant has co-operated with the WorkCover Authority and that also is a factor of significance in mitigating the severity of the penalty. 87 In relation to the defendant's submission that the prosecutor should receive the costs of only one day of the two days occupied by the evidence and submissions on this plea, I am not satisfied that the circumstances warrant such a step. The defendant was entitled to place material before the Court in mitigation and took the opportunity to place a substantial amount of documentation before the Court. The prosecutor thoroughly tested that material and the basis on which it was sought to establish that evidence. While this exercise might have been conducted in a shorter time frame, the cross-examination nevertheless illuminated the material relied on by the defendant, on occasions placed it in a context that gave a slight but meaningful difference to the purport of the evidence and, on some occasions, demonstrated a fairly meagre basis for the material relied upon. In those circumstances I am unable to accede to the defendant's request that the usual costs order should not be made against the defendant. ORDERS 1. The defendant is found guilty of the breach of s 15(1) of the Occupational Health and Safety Act 1983 as particularised in the Amended Application for Order in Matter No IRC 6942 of 2002, to which it has pleaded guilty. 2. The defendant is fined the sum of $105,000 with a moiety payable to the prosecutor. 3. The defendant shall pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as determined by the Court.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Inspector Ruth Buggy
Hunter Area Health Service