Requests for admission will not necessarily result in admission. Assessment by a Mental Health professional of the psycho-social factors surrounding the request will first be made.
All admissions must be made with patient consent.
Voluntary admissions may be made for:
* Crisis intervention
* Assessment
* Stabilisation of medication
* Respite care (psychiatric, not psychogeriatric)
The patients admitted to this Unit will be admitted on a voluntary basis. Admission will be only one of the strategies in a treatment plan which aims to maximise the individual's independence and self-responsibility.
Admission procedures should aim to maximise respect, privacy and safety for patient and staff, as well as co-ordination of delivery of care.
1. Admissions will be under the care of the Specialist Psychiatrist. Where admission is requested and effected without assessment by the Specialist Psychiatrist, Nursing Administration will advise that assessment by the Specialist Psychiatrist or a member of the Community Mental Health Team will occur as soon as possible after admission.
2. Voluntary admissions will enter the hospital via normal admission procedures.
3. The admission nurse in the Unit will attend to all the usual admission procedures.
4. Where admission is connected with suicidal behaviour or ideation or otherwise dangerous behaviour, all personal belongings to be checked in presence of patient and potentially dangerous items removed, (ie medications, razors, scissors etc). This is to be explained to patient in terms of promoting a safe environment for them. (See Appendix K.)
5. In consultation with the psychiatrist or a member of the Mental Health Team, the patient will be categorised (see Appendix B) and level of care duly organised with Nursing Unit Manager/Nursing Administration.
II Involuntary Admissions (not routinely admitted)
Involuntary admission is only to be organised when all other least restrictive alternatives have been explored and/or attempted .
A person may be an involuntary patient if, owing to their condition, there are reasonable grounds for believing that care, treatment and control of the person is necessary:
(a) for the persons own protection from serious physical harm or
(b) for the protection of others from serious physical harm.
Involuntary patients could arrive at Accident and Emergency for the following reasons:
1. Assessment
2. Medication (see Appendix C - Rapid Neuroleptisation)
3. Maintain emotional/physical security until transfer to nearest gazetted unit has been arranged.
In exceptional circumstances, (i.e. late at night) patients may be admitted to Macleay Valley Health Service due to logistic problems of transfer. Ongoing assessment of the patient should include the need for sedation and/or special nursing.
Once a patient has been scheduled they cannot be admitted to a non-gazetted unit. If, however, logistic problems delay transfer, they may be cared for as outpatients in Accident and Emergency or the Psychiatric Service.
373 Dr Barclay's evidence was that the criteria for admitting an involuntary patient under the Admissions Policy was the same criteria set out under the Mental Health Act for scheduling a patient. Section 21 of the Mental Health Act provides that a registered medical practitioner may schedule a person.
374 Chapter 3 of the Mental Health Act 1990 deals with mentally ill and mentally disordered persons. Sections 8, 9 and 10 are in the following terms:
8 Criteria for involuntary admission etc as mentally ill person or mentally disordered person
A person is a mentally ill person or a mentally disordered person for the purpose of:
(a) the involuntary admission of the person to a hospital or the detention of the person in a hospital under this Act, or
(b) determining whether the person should be subject to a community treatment order or be detained or continue to be detained involuntarily in a hospital or other place,
if, and only if, the person satisfies the relevant criteria set out in this Chapter.
9 Mentally ill persons
(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:
(a) for the person's own protection from serious harm, or
(b) for the protection of others from serious harm.
(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.
10 Mentally disordered persons
A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person's behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:
(a) for the person's own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.
375 It can be seen from a comparison of the relevant provisions of the Admissions Policy and the Mental Health Act that the criteria for a voluntary and involuntary patient are exactly the same. The defendant contended that Dr Winder applied the Mental Health Act in assessing Mr Trimarchi upon his arrival at the hospital and as such was also making an assessment under the Admissions Policy. This contention, in my view, is unsustainable in circumstances where Dr Winder had received no training in respect of the Admissions Policy. There is also no evidence before me that Dr Winder was applying the provisions of the Mental Health Act and I am not prepared to make such an assumption.
376 This led the defendant to submit that the failure to give adequate information, instruction, supervision and training to Dr Winder and Nurse Carter about the Admissions Policy was a failure in respect of the policy of the most technical kind, as an assessment had occurred in fact in accordance with the policy. I reject this submission as there is no basis to suggest such an assessment has taken place under the Admissions Policy. In doing so, I acknowledge that the evidence of Dr Barclay is that even with the implementation of the systems and procedures, he recommended, it would still have been open, on a reasonable basis for Dr Winder and Nurse Carter to come to the view which they did. The critical point is that the Admissions Policy was not applied by Dr Winder and Nurse Carter.
377 The prosecutor submits that the defendant's failure to arm and educate its employees with the content and the tools necessary to perform their responsibilities under the policy significantly increased the risk of an inadequate assessment of Mr Trimarchi upon initial presentation to the Emergency Department of the hospital.
378 Dr Barclay's evidence was that such a tool was unlikely to impact on the assessment because there is nothing much objective in psychiatry and subjective decisions have to be made on the ground by the doctor in question. Dr Barclay accepted that it was an appropriate and reasonable treatment plan in this case to admit Mr Trimarchi into the 149 Unit as a voluntary admission for observation. In Dr Barclay's view, Dr Winder was likely to have undertaken an assessment of the matters relevant to the risk profile of Mr Trimarchi.
379 Both Dr Winder and Nurse Carter were of the opinion that Mr Trimarchi was not a danger to himself or others and was not suitable to be scheduled. On the evidence, there was a failure to categorise Mr Trimarchi by reference to the Admissions Policy and therefore a breach of the policy. The utilisation of the criteria under the Mental Health Act cannot, in my view, result in the same assessment as would have occurred if the Admissions Policy had been utilised. The policy requires categorisation to take place at the time of arrival at the hospital and the failure to categorise Mr Trimarchi strictly by reference to the Admissions Policy led to the consequences in terms of an exposure to the risks to the health and safety of employees or persons at the hospital at the time of admission. The risk is if you do not apply the Admissions Policy, you could have a psychotic patient admitted to the hospital. This risk was realised at the point of admission. Dr Barclay's evidence was that Mr Trimarchi was a patient with serious delusions and that he was psychotic. Therefore, at all times from the first point of admission, there was a risk which was not of a technical kind, but a serious risk. The risk is acknowledged by the defendant's plea.
380 I accept that finely balanced judgments are required to be made by health professionals in assessing psychiatric patients upon presentation at a hospital and that the psychiatric condition of Mr Trimarchi was not known to the defendant nor his potential for aggressive violent behaviour at the time of his presentation at the hospital. The very reason for the Admissions Policy is to ensure that a psychotic patient is not admitted as a voluntary patient.
381 The prosecutor contended that the defendant had failed to ensure that the true nature and extent of Mr Trimarchi's delusions were assessed, or properly recorded. I have already addressed this issue and accept that there was a failure to educate and train employees in relation to the Admissions Policy which gave rise to the risk discussed above. The prosecutor also contended that the defendant failed to search Mr Trimarchi's briefcase and consider important other sources of information; failed to contact Westmead Hospital; that an assessment, wherever possible, of a mentally ill person should be performed by a specialist psychiatrist and a diagnosis or provisional diagnosis should have been made and that no medication was prescribed for immediate administration.
382 I will deal with each of these matters in turn. Firstly, the obligation under the Admissions Policy is to search personal belongings when the admission is "connected with suicidal behaviour or ideation or otherwise dangerous behaviour". Potentially dangerous items such as medication, razors and scissors should be removed. Dr Winder and Nurse Carter's assessment was that Mr Trimarchi was not in danger of serious physical harm to himself or other people. However, this assessment was reached without applying the Admissions Policy. Mr Trimarchi had allegedly threatened his wife with a machete and claimed to be God. In such circumstances there was an obligation under the Policy to search his belongings. The clinical notes of Nurse Carter record "Police (Snr Constable Packward and Hennessey) highlighted the contents of Victor's briefcase, however the briefcase appears to contain books of Victor's poems and Buddhist study notes". The evidence is that the Police searched the briefcase and told Nurse Carter that it was full of papers and recommended that the contents of the bag be read by both the nurse and the psychiatrist. There is no evidence that this occurred until at about 7.00 pm when Mr Trimarchi showed Nurse Turner the contents of his briefcase. The defendant did not comply with the requirement in the Admissions Policy to check all personal belongings of Mr Trimarchi at the time that an assessment of him occurred.
383 Secondly there is no requirement under the Admissions Policy when undertaking an assessment of a person to be admitted to the hospital that sources of information regarding that person should be explored and it is not a particular of the charge.
384 Thirdly, it was alleged by the prosecutor that Mr Trimarchi had been admitted to Westmead Hospital some 10 to 15 years earlier, although no evidence was introduced that established such admission to that hospital. Although the defendant admits that there was a failure to contact Westmead Hospital, the defendant contends that this failure did not lead to any risk to the health and safety of anyone at the hospital. The Admissions Policy does not appear to include such a requirement. Dr Barclay's evidence was that very little weight would have been placed on such an admission to the hospital, it having occurred 10 to 15 years earlier. No evidence was called to establish whether Westmead Hospital still held any information in respect of Mr Trimarchi and whether such information would have been any different to the information which the defendant had already obtained from Mr Trimarchi. In my view, the evidence does not establish that any alleged breach in this regard gave rise to any risk to the health and safety of those at the hospital. Although this part of the particular is admitted, it is difficult to see how it impacted upon the health and safety of persons employed and not employed at the hospital.
385 Accepting that Westmead Hospital was not contacted, such a breach, in my view, can only be characterised as the most technical kind. I propose to deal with this part of the particular on that basis.
386 Fourthly, the evidence discloses that Mr Trimarchi was placed under the care of Dr Holmes, a consultant psychiatrist to the hospital. The particulars allege that the Admissions Policy required Mr Trimarchi to be examined or assessed by a specialist psychiatrist or nominee. The Admissions Policy has no such requirement. As has been set out earlier in these reasons, the Admissions Policy states that pre-admission assessment may be undertaken by a member of the Community Mental Health Team or without a pre-admission assessment by a specialist psychiatrist or mental health professional. If such an assessment is not undertaken, the Admissions Policy provides that such an assessment will occur "as soon as possible after admission and reviewed at first case review meetings".
387 Dr Winder and Nurse Carter made an assessment of Mr Trimarchi. Nurse Carter then attempted to contact Dr Holmes during his shift after Mr Trimarchi was admitted to the 149 Unit but without success. Nurse Turner made contact with Dr Holmes at about 6.30 pm and Dr Holmes was to see Mr Trimarch first thing the following morning during his usual rounds. During Nurse Turner's shift on 2 July 2001, in the 149 Unit, Mr Trimarchi was not inappropriate in behaviour and was polite and sociable with other patients. Nurse Turner concluded her shift at 10.30 pm, twelve hours after Mr Trimarchi was admitted.
388 In my view, the Admissions Policy was complied with, in that an assessment by a specialist psychiatrist was arranged as soon as possible after the admission. On the evidence it does not seem to me that this part of the particular has been made out.
389 Fifthly, Mr Trimarchi was admitted for observation and neither Nurse Carter or Dr Winder prescribed any immediate medication. There is no requirement for this to occur under the Admissions Policy and it is not a particular of the charge.
390 The finding that parts of a particular (particular (k) of IRC 3150 of 2003 and particular (j) of IRC 3151 of 2003) are not made out does not, of course, detract from the overall charge being made out. Here a plea of guilty was entered to the charge.
391 A critical issue that arose in respect of this matter was the sudden and serious deterioration in Mr Trimarchi's condition, such deterioration evidenced by "bizarre behaviour" from approximately 1.00 am on 3 July 2001. Mr Trimarchi had been admitted to the hospital at approximately 10.30 am on 2 July 2001. The Admissions Policy does not appear to deal with such a situation. Such a deterioration in a patient would require an urgent reassessment to take place, presumably carried out by a psychiatrist. This was a recommendation made by Dr Paton in his report. At the time that Mr Trimarchi began displaying bizarre behaviour, Dr Cook was called to reassess Mr Trimarchi. Upon the arrival of Dr Cook and a psychiatric nurse, they found Mr Trimarchi appearing to be asleep and they decided not to disturb him (see agreed facts par 55 - 58). This decision was described by Dr Barclay as the critical decision on the night. However, Dr Barclay describes Dr Cook's decision as reasonable in the circumstances. It was this decision that allowed Mr Trimarchi to remain in Unit 149.
392 It is to be observed that Dr Cook is not named in the particulars of the charge, nor is any criticism made of his training, instruction, information or supervision.
393 The failures in respect of these charges relate to the provision of adequate information, instruction, supervision and training in respect of certain staff in relation to the Admissions Policy of the defendant. There is no criticism made of the Admissions Policy. In my view, the failures resulted in certain of the matters identified in particular (k) of proceedings IRC 3150 of 2003 and particular (j) of proceedings IRC 3151 of 2003 occurring as has already been discussed in these reasons. In my view, the failures in particulars (k) and (j) were failures which occurred upon the arrival by Mr Trimarchi at Kempsey District Hospital. It was at this time the risk was realised. It is therefore necessary to consider the potential consequences as to injury or death relevant to the breaches to which the defendant pleads guilty. In my view, and I find the risk's potential from the non application of the Admissions Policy was to cause or result in serious injury or worse.
394 As the Full Bench observed in the recent judgment of Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416 at [32]:
In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464.
395 In my view there is nothing in the Admissions Policy which sets out triage procedures or deals with risk assessment. The Admissions Policy required an assessment by a medical health professional of the psycho-social factors surrounding the request for admission. The Admissions Policy required early assessment of Mr Trimarchi including identification of assaultative potential and history.
396 Mr Trimarchi was initially assessed by registered Nurse Whatmough. He then arranged for Nurse Carter, a psychiatric nurse of 10 years to assess Mr Trimarchi. His assessment was that Mr Trimarchi was not a danger to himself or others (the criteria under the Admissions Policy for involuntary admission).
397 Some time later Dr Winder assessed Mr Trimarchi. Dr Winder, who consulted Nurse Carter, was also of the opinion Mr Trimarchi was not a danger to himself or others and was not suitable to be scheduled. However, both Dr Winder and Nurse Carter reached the view that "there was some psychosis going on and that we would therefore send him to … Port Macquarie or Coffs Harbour". It is not clear from the evidence whether it was only the lack of a bed that resulted in this initial decision or whether other factors were taken into account. When a bed became available Mr Trimarchi was admitted "for assessment". Had Dr Winder and Nurse Carter been educated and trained in the categorising of patients in accordance with the Admissions Policy, the employees would not have been exposed to the risk of a psychotic patient being admitted.
398 Nurse Carter attempted to contact Dr Holmes. Nurse Turner, a psychiatric nurse also with 10 years experience commenced work at 2.30 pm. Nurse Turner was provided with a copy of the AVO and statement from Mrs Trimarchi at approximately 6.00 pm. Nurse Turner contacted Dr Holmes at 6.30 pm who advised he would examine Mr Trimarch at 7.00 am the following morning. At about 7.00 pm Mr Trimarchi showed Nurse Turner the contents of his briefcase. Nurse Turner considered the contents and noted in Mr Trimarchi's hospital records that:
(i) the contents disclose the obvious religiosity of Trimarchi's delusions; and
(ii) Summons (Kempsey Local Court dated 3/7/2001, 0900) will have to be deferred until treatment takes effect.
399 At 10.30 pm Nurse Hyland, a psychiatric nurse with 40 years experience replaced Nurse Turner on duty. After Mr Trimarchi displayed bizarre behaviour at 1.00 am on 3 July 2001, Nurse Hyland consulted Nurse Bateman, the Nurse Manager and discussed whether Mr Trimarchi should be "scheduled". Nurse Bateman then requested Dr Cook to assess Mr Trimarchi. When Dr Cook arrived, Mr Trimarchi appeared to be asleep. Dr Cook, Nurse Bateman and Nurse Hyland decided he should not be disturbed and a further assessment, including scheduling Mr Trimarchi should be left until the morning.
400 I am prepared to give the defendant the benefit of the doubt that it had skilled health professionals employed at the hospital. However, the risk is that if adequate training, supervision and instruction was not given in respect of the Admissions Policy, a person may be admitted as a voluntary patient when they should not have been admitted. I accept that those health professionals who dealt with Mr Trimarchi gave earnest attention to his problems. His condition may initially have been difficult to detect and employees of the defendant, including those with qualifications who were employed on 2 and 3 July 2001 would not have been in a position, in my view, to make a proper assessment of patients without adequate training, information, instruction and supervision in respect of the Admissions Policy. It is this failure that gave rise to the risk.
401 I therefore propose to consider the objective seriousness of these breaches in this context. In my view, the assaults and the tragic death of Mrs Benedek were caused by the failures on the part of the defendant. In assessing the degree of seriousness of the risk, I propose to take into account the injuries to the nurses and the death of Mrs Benedek. I find that the breaches are at the mid to high end of the range of objective seriousness.
Safety and Security Charges
402 The second group of charges IRC 3148 of 2003 and IRC 3149 of 2003 allege that the defendant failed to fully implement the requirements of the New South Wales Health policy "Safety and Security - Minimum Standards for Health Care Facilities" ("the Manual"). This policy was issued in September 1998.
403 The defendant observed that it is not alleged that the actual death or assaults were caused by the failure and/or omissions alleged. The last particular of each charge asserts that there was a "potential risk" by reason of the breach of the Act.
404 Chapter 4 of the Manual is headed "Security Education and Training". It required all Health Care Facilities to provide the following security training appropriate to their position. Education and training must contain:
(a) new arrivals briefing;
(b) continuing education;
(c) training for staff in high risk areas;
(d) specialist security training; and
(e) departure briefing.
405 The prosecutor tendered a business record of the hospital which purports to record the security training provided by the hospital as at 4 July 2001. Two spreadsheets are attached to this document. The first relates to security training for nursing staff and the second relates to all staff.
406 The training provided is divided under three headings:
Security Orientation.
Security Mandatory Education (last attendance).
Attendance at One Day Workshop in Prevention and Management of Aggression.
407 These spreadsheets demonstrate that the hospital held no record of any security training of the types outlined above having been provided to Dr Winder, Elizabeth Avery, Valerie Hyland, Gordon Turner and Robert Whatmough. Gail Bateman is recorded as having received training in prevention and management of aggression on 19 November 1998. Paul Carter is recorded as having received training in prevention and management of aggression on 5 November 1998. Susan Smith is recorded as having attended security orientation training on 26 February 2001.
408 Chapter 3 of the Manual, is titled "Security Surveys". It required the hospital to carry out a yearly security survey/inspection. The Manual provides a checklist to be used as part of the conduct of the yearly survey.
409 It is an agreed fact that no security survey was conducted at the hospital in accordance with the Manual prior to the subject incident (see par 109 of the agreed statement of facts).
Duress Alarm Charges
410 The third group of charges IRC 3146 and IRC 3147 of 2003 allege a failure to provide safe systems to ensure a timely and appropriate response to the activation of duress alarms in emergency situations.
411 It was common ground that the only written material relating to a duress alarm response distributed at the hospital prior to the subject incident was found at p 16 of the Kempsey District Hospital, Orientation Programme, Nursing Administration (Shift Co-ordinators). This part of the programme is headed "Alarms". Under the subheading "Duress" the following appears:
Personal duress alarms are issued to staff in areas that are considered isolated eg. Multi-purpose, renal dialysis, maternity, rehabilitation, emergency department, 149 unit and front office switch. The alarms are checked each day following hand-over at approximately 1600 hours except for the renal dialysis unit, which is checked at the commencement of the shift on the days dialysis is taking place. When the duress alarm is raised the person receiving the duress alarm responds with a second person to the area as quickly as possible to assess the situation. Once the situation has been assessed the shift coordinator needs to contact the relevant services if required eg. police or hospital security service or both. If staff are utilised from isolated areas the duress alarm is again tested and staff remaining in the area are instructed to carry alarm with them.
412 The evidence discloses there is no regular review of duress alarm systems at the hospital, nor did the defendant conduct any proper duress response training.
413 The evidence also discloses that in or about February 2001, the defendant retained Amtac Professional Services Pty Ltd to conduct a review of "aspects of security at Kempsey District Hospital" with a view "to determine the effectiveness and appropriateness of existing security measures and to identify vulnerabilities which expose the Mid North Coast Area Health Service to security related risks, such that effective measures to protect the hospital, its population and assets may be developed."
414 The review was conducted between 16 and 18 February 2001. The Amtac Report is dated 4 July 2001 and bears a date stamp of the Area Asset and Security Coordinator of the defendant indicating receipt of the report on 23 July 2001.
415 The report indicates that as at 18 February 2001, there were identifiable failings in the hospital's existing "security systems" which created vulnerabilities relevant to the subject incident.
416 The report contained the following findings and observations:
Under the heading "Existing Security Strategies" the following appeared:
8.2.1 General
The Mid North Coast Area Health Service currently employs a range of protective security measures, including locks, alarms systems, Closed Circuit Television and security patrols. There is, however, no structured approach to security risk management.
Whilst we acknowledge that the NMCAHS will be formulating a security management strategy in due course, the absence of clearly documented security policies and procedures places the Kempsey District Hospital at risk of losses, not just directly through security related incidents, but also exposes Mid North Area Health Service to the risk of embarrassment, civil litigation and potential prosecution under the Occupational Health & Safety Act 1983 .
Under the heading "Security Administration" the following was observed:
…
During the review, a number of gaps in security administration were noted. For example, no evidence of policies and procedures relating to duress response could be identified, and no records or logs of alarm activations were found.
…
However, this and other procedures do not appear to be supported and maintained by formal documentation and training.
An issue of concern raised during interviews is that staff regularly work alone in isolated parts of the facility, and this impacts upon feelings of personal safety and security.
Under the heading "Training" the following observations were recorded:
Training in duress response was provided to some staff, but did not cover all staff that might have call to assist in duress situations. The level of training provided does not appear to be adequate considering the level of risk that is present in the hospital environment. There is the potential for a high degree of violence to occur in some situations, such as a substance abuser who may be brought into the Emergency Department.
Under the heading "Electronic Alarm Systems" the report observed the review found that the response to duress alarms is an issue of significant concern. Many staff work in areas of the facility which may be quite remote from a staff member who is designated to respond, and it is foreseeable that a person who is designated to respond may at some time be the person needing to issue the alarm. The quality of training for those responding, and their preparedness to handle some situations is also of concern.
Under the heading "Security Awareness" it was observed:
In general terms, the review sound that staff at Kempsey District Hospital exhibit a low level of understanding of their role in maintaining the security of the facility and its assets. The lack of a formal security programme, including designated security staff and security policies and procedures which provide guidance to staff, are undoubtedly influencing factors … However, the absence of regular training, and the lack of supporting security personnel on campus would make it difficult for even the best intentioned staff member to have a positive impact on security at the facility.
Under the heading "Psychiatric Care" the following was observed:
Care for patients with a mental illness is provided via the Psychiatric 'Ward', which is actually a 4-bed annexe of the Surgical Ward. As this section was not originally designed to cater for psychiatric patients, there are a number of security features that are not present. Of major concern is the absence of any restriction on patients movements in and out of this annexe. Also of concern is the availability of suitably trained and prepared duress response, as discussed earlier in the report.
417 Dr Barclay's report was that Mr Trimarchi was a patient with serious delusions and that indicated that he is psychotic. Such a patient can change their mood and their behaviour very rapidly and are susceptible to become violent under little or no provocation. Such a mood change can occur in a flash. Dr Barclay observed that such patients can be calm and very agreeable one moment and in a flash they can change. This evidence coupled with Dr Barclay's evidence that assessing the assaultative potential of patients upon presentation can result in reasonable disagreement, resulted in my view, that the defendant was required to ensure that it had in place security systems and staffing sufficient to deal with risks associated with the potential of patients such as Mr Trimarchi who may act upon their delusions.
418 It is clear from a consideration of the Amtac Report that the defendant did not have in place proper safety and security measures. As a result of these failures there was a risk of injury to both patients and staff from patients with assaultative potential such as Mr Trimarchi. The defendant has an absolute obligation under the Act to ensure the health and safety of both its employees and non employees. This requires it to minimise any risk to persons health and safety. Inadequate security measures and inappropriate duress alarm systems were all failures which gave rise to a risk to the health and safety of persons at the hospital. Proper security measures are required because the condition of psychiatric patients can change quickly and such patients can also be manipulative.
419 The defendant submitted that the objective seriousness in respect of the second and third groups of charges are at the low end of the range and that the maximum penalties available should only be utilised in a worse case scenario: see WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd at 185 per Wright J President; Camilleri Stock Feeds Pty Ltd v Environmental Protection Authority at 698 - 699; Veen v R (No 2) (1998) 164 CLR 465; WorkCover Authority of New South Wales (Inspector Peter Ankucic) v McDonalds (Australia) Limited & Anor.
420 As was observed in Capral Aluminium at [81] - [82], the existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature.
421 The risk in this case was the risk of a patient becoming assaultative. The Admissions Policy acknowledged "admission procedures should aim to maximise respect, privacy and safety for patients and staff as well as coordination of delivery of care". There were clearly failures in the hospital's security systems that resulted in the defendant failing to ensure that it had in place security systems sufficient to deal with risks associated with the potential of patients such as Mr Trimarchi if and when they were to act upon their delusions.
422 Such security measures should have included conducting annual security surveys in accordance with the minimum standards for health care facilities as set out in the Safety and Security Manual September 1998; the introduction of security training as part of mandatory induction training, together with the maintenance of security awareness through annual mandatory security training; the identification of high risk and isolated areas requiring particular security measures; ensuring that staff were not required to work alone in the 149 Unit; proper security measures to prevent unrestricted access to and from the 149 Unit to other parts of the hospital and the provision and maintenance of training in minimisation and management of aggression. In respect of this last issue, Dr Barclay's evidence was that there was a need for annual training and the defendant has adopted this recommendation and introduced a one day refresher course as part of its ongoing training programme.
423 The defendant did not provide relevant nursing staff with adequate training with respect to this policy and Dr Winder received no training at all. Dr Barclay's evidence was that it is necessary for medical and nursing staff to be reminded constantly of the issues they should be looking for in each patient that may be indicative of high risk or higher assaultative potential.
424 Proper assessment and categorisation of patients plays a critical role in securing the safety of both the hospital staff and patients. The failure to provide adequate security training with respect to the operational policies was critical failure. Staff need to be provided with reminders and have training reinforced.
425 In WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd at 198 Walton J Vice-President observed at [126]: