Sydney Local Health District v SafeWork NSW

Background

1. The proposal to remove the counters from the IPCU and HDU in the McKay Unit was discussed at a McKay Unit Nursing Staff Meeting held on 9 August 2018. The following was recorded in the minutes of that meeting: * McKay is in the bid for $500,000 to the units. Anna Gittens his behind this at the moment. Some changes that will be made if the money is received are; - Nurses Station will be renovated so more computers and hot desks are available. The counter between the patients and the Nurses Station will be removed and replaced with a step. ………………………………… * It is noted that there is created tension and anxiety from staff for the removal of the counters that separates staff from the patients. Nursing staff are much opposed to this.
2. On 11 October 2018, a Planning Day was held at the CCMH for the purpose of providing an overview to staff of the rationale and plan for the proposed capital works at the McKay Unit and to obtain feedback from staff. The following are extracts from the minutes of that meeting: * Clinical Touchdown desk; the current counters separating the units and the nurses station will be removed and left as desks. The point of this is to improve therapeutic environment. * The mass majority of McKay Staff expressed their anxiety and protest against this decision explaining that they will not feel safe in the nurses' station and on the ward with the counters removed. McKay staff admitted that the counter has saved their lives during many incidents involving patients and very much feel that this decision is not suited for the IPCU and HDU units. * Ms Anna Gittens (Facility Planner, Mental Health Service, SLHD) explained that Manning Unit had the same reaction when told about their counter being removed. However once it was completed they felt that it works well for their unit. Despite this the McKay staff mentioned that IPCU and HDU acuity is very different to other units hence they feel the removal of the counters is still not appropriate or safe. * Mr Lance Takiari (Acting Director of Nursing, Mental Health Service, SLHD) joined the discussion upon request. This was due to the debate of the counters in IPCU and HDU being removed. * One McKay staff member mentioned that they did not mind if the counters were removed however he was happy to support his fellow co-workers as he could see that the majority of them wanted the counters to remain as they are. * Mr Lance Takiari mentioned that the decision to remove the counters had not been approved as of yet. * Ms Sophie Isobel (Facilitator) emphasised to Ms Anna Gittens and Mr Lance Takiari that today's planning day had been a positive movement up until this last session. Ms Sophie Isobel recognised the staffs' concerns and encouraged Ms Anna Gittens and Mr Lance Takiari to listen and to take on board on what their staff are saying to them in regards to the removal of the counters and their staffs' safety. Especially due to the fact that majority of the earlier sessions were focused on how McKay can improve safety particularly for the staff who have expressed that they often do not feel safe coming into work. Ms Anna Gittens expressed that she is listening. Ms Sophie Isobel asked Ms Anna Gittens and Mr Lance Takiari for previous positive efforts of the planning day not to be deflated by the current discussion and to allow McKay staff to feel heard. * As a compromise one staff member suggested the idea of a trial with the removal of the counter. HDU to have the counter removed only and for IPCU to remain the same. This suggestion was rejected by Ms Anna Gittens as the funding to remove both counters will only be available to the service within this financial year. * Ms Anna Gittens assured that the counters would go back up if it was decided it was too dangerous to have them removed. McKay staff explained that by then it may be too late as the only way to perceive that is for a staff member to get injured which can lead to trauma. * Majority of McKay attendees remained to feel unheard.
3. Following a request for service made on or about 2 October 2018 to SafeWork from the New South Wales Nurses and Midwives' Association ("NSWNMA") in relation to the CCMH, Inspector Ochoa attended the CCMH on or about 12 October and spoke with staff members. In an inspection report subsequently prepared by Inspector Ochoa, the following was recorded by her: INSPECTION OUTCOMES SUMMARY ……………………………. 3. Advice provided to the Duty Holder I informed the PCBU (Person Conducting a Business or Undertaking) that I would undertake a follow up site visit to the Mackay Ward to inspect the incident location, the staff counter office areas, and to speak to workers that were involved in or witnessed the incident. I informed the PCBU that I would await confirmation from them as to the most suitable date and time for the follow up site visit. I advised the PCBU that it appeared that they were not reporting incidents involving occupational violence in line with a Ministry of Health policy and procedures, as some violent incidents had been recorded and categorised as clinical incidents only. I advised the PCBU that I had concerns about the proposed changes to the staff counter area, as they had incidents involving patients jumping over the counter or trying to grab staff over the counter. I advised the PCBU that the Mackay Ward could not be compared to facilities or wards that have patients with lower care needs, as the risks of violence may differ. INSPECTION DETAILS 1. Purpose of entry I entered this place to address request to deal with unresolved health and safety issue 2. Summary of Inspector's Observations 1) I obtained information about incidents involving one patient, that commenced on the 17/09/2018. I sighted incident reports and briefing notes in relation to these incidents. I was informed that anything an incident investigation has not been completed for this matter. 2) I was informed that the consultative arrangement in place is a work health and safety committee. 3) I was provided with information about the layout of the Mackay Unit, where incidents occurred. 4) I was informed that minor capital works are planned for the Mackay Unit, which involves transforming a seclusion room into a de-escalation room, and altering the design of the staff counter area. I sighted plans and a PowerPoint presentation in relation to the minor capital works discussed. I was informed that staff were briefed on the minor capital works the day before, and that concerns raised by staff were being considered by management. 5) I sighted records of incident reports categorised as clinical or work health and safety related incidents, which were from the dates between the 17th of September 2018 to the 12th of October 2018. I sought clarification on how violent incidents are classified in the reporting system, and was advised these are classified by considering if a worker is injured in the incident. If the worker is not injured these incidents are recorded as a clinical incident only. 6) I was informed of changes to staff numbers and changes to training provided to the workers in the McKay Unit. 7) The PCBU informed me that they reassured staff that they would not compromise their safety as a result of the kpi's for seclusion rates.
4. The proposal to remove the counters from the IPCU and the HDU was further discussed at a consultation meeting held on 15 October 2018. The following was recorded in the minutes of that meeting: 24. New touch down counter to the HDU IPU, staff requested that the counters are simple in their design to offer access to a telephone and a space for computer use by the patient, staff happy to trial the proposed new counter in the HDU with changes as discussed. Staffs prefer not to make changes to the ICU counter at this stage until a full trial has been undertaken on the HDU side.
5. A further consultation meeting was held on 24 October 2018. The following was recorded in the minutes of that meeting: 16. PICU outer counter no change made to it as per previous meeting agreement to trial the HDU side first. Noted that the wall between HDU is to be closed off and two separate doors into the staff base from both IPU's. Existing staff counter will not have a swipe card installed until a finale discussion is made as it currently doesn't have a swipe card reader
6. Inspector Ochoa attended the CCMH again on 26 October 2018. On that occasion she again spoke with staff members. In an inspection report subsequently prepared by Inspector Ochoa, the following was recorded by her: INSPECTION OUTCOMES SUMMARY …………………………. 3. Advice provided to the Duty Holder I informed the PCBU that I had concerns about the level of violence staff have indicated they are being exposed to. I advised that I will undertake a follow up site inspection and will address the issues of objects being used as weapons, blind corners, and incident follow up. INSPECTION DETAILS 1. Purpose of Entry I entered this place to address request to deal with unresolved health and safety issue 2. Summary of Inspector's Observations 1) I was informed that the data provided for the duress alarm activation is not an accurate reflection of actual emergencies in the McKay Ward, as staff have been activating the duress alarm for non urgent matters that require additional staffing. I sighted the "Policy Directive - Duress Alarm Policy - Inpatient Service", dated 29/01/2015 that indicated in section "10. Procedure" that the duress alarm should only be activated for urgent assistance. 2) I was informed by the PCBU that they believe the business is recording incidents as required, and has used the data to identify when issues are occurring. They confirmed that issues of violence where a worker is not injured, is being recorded under the category of clinical. I sighted the policy directive "Incident Management Policy" dated 10/02/2014 that indicates incidents of violence must be recorded in the corporate category. 3) I inspected the McKay Ward and took photographs of the staff counter area, and I was informed that the business has altered the plans for the refurbishment that includes keeping the counter for the IPCU ward and having a touch down desk in the HDU ward. I sighted the updated plans for the refurbishment of the counter & the seclusion room. 4) I obtained information about the incident on the 17/09/2018 from witnesses. 5) I was provided with information by workers of the concerns they have about patient related violence in the McKay Ward. Staff indicated that they have concerns for their safety and indicated that there were measures that could be implemented to make the ward safer. Issues raised related to: objects used as weapons; blind corners, staff being cornered in wards, lack of visibility from staff counter; patients jumping counter; low staffing; concerns about the removal of a seclusion room; broken windows; VPM training inadequate; & delays in the duress alarm activation.
7. On 29 October 2018, Inspector Ochoa issued three Improvement Notices on SLHD, including Improvement Notice 7-341700 relating to control measures to be implemented for the use of the counter in the prevention of violence. Extracts from the Improvement Notice are reproduced below: Details of the contravention: Site location: Concord Centre for Mental Health, Hospital rd, CONCORD, NSW, 2137 I, Mara Ochoa reasonably believe on 26/10/2018 at 10:00 AM that you are contravening a provision of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 38. Brief description of how the provision is being or has been contravened: Workers are exposed to occupational violence in and around the counter area of the McKay Ward as the Person Conducting a Business or Undertaking has not adequately reviewed the control measures in place to prevent patient related violence over the counter, and has refurbishment plans that includes the removal of the counter in the HDU (West wing) to be replaced with a touch down desk, and plans to refurbish the existing counter in the IPCU (East Wing), which could increase workers exposure to violence. E.g.: Workers in the McKay Ward have experienced patient related violence in and around the counter that includes patients grabbing and assaulting staff over the counter, patients jumping over the counter, patients reaching over the counter to open the door to access the staff area, and patients throwing objects such as chairs over the counter. Directions as to the measures to be taken to remedy or prevent the contravention or likely contravention: (it is mandatory to comply with these directions) 1. You must review and as necessary revise control measures implemented for the use of the counter in the prevention of client related violence towards staff in the McKay Ward. In reviewing the control measures you must consider: - the incidents of patient related violence that have occurred in and around the counter area of the McKay Ward in the last 12 months - the various types of violence experienced by staff in and around the counter area - identify measures to adequately prevent or control patient related violence towards staff in and around the counter area - ensure that any refurbishment to the counter area does not increase the risk of occupational violence towards staff. 2. You must consult with staff of the McKay Ward on the review of the control measures for the counter area. 3. Your attention is drawn to Clause 38 of the Work Health & Safety Regulation 2017.
8. On 20 November 2018, Inspector Ochoa again attended the CCMH accompanied by Principal Inspector Megan May. Inspectors Ochoa and May worked closely together with respect to the background to the Prohibition Notice which was subsequently issued by Inspector Ochoa. Inspector May is the nominated psychosocial member on SafeWork NSW's Road Map Government Sector plan which applies to public health facilities. She is also the portfolio manager for violence in SafeWork's psychosocial team.
9. A further consultation meeting was held on 27 November 2018. The following was recorded in the minutes of that meeting: 4. Consumer staff touch down counter HDU and ICU counter remains unchanged from the last meeting, staff noted that a safe work risk assessment was currently underway area of concern is the ICU current counter
10. On 9 January 2019, a document entitled "McKay Unit, Concord Centre for Mental Health, Consumer & Staff Interface Area, Risk Assessment of Existing Counters" was produced by Lance Takiari, Acting Director of Nursing, Mental Health Service, SLHD, and others. That risk assessment, which was undertaken in response to Improvement Notice 7-341700, considered five options to address the aggression risk associated with the counter. Option 5, which was the option eventually chosen by SLHD, involved the removal of the existing high staff counters within the ICPU and the HDU within the McKay Unit and their replacement with open consumer/staff interface areas (fixed desk spaces).

Prohibition Notice 41529

1. On 20 February 2019, the day the Prohibition Notice 41529 was issued, Inspectors Ochoa and May attended the CCMH and spoke with staff members. Inspector Ochoa subsequently prepared an inspection report which contained the following: 3. Advice provided to the Duty Holder ………………………….. I advised the PCBU that there is a difference between providing information & consultation with workers. I advised that it was not clear how the workers representatives (union) were involved in the consultation of the risk assessment if they had not been provided with a copy of the document prior to the decision been made to do Option 5. I informed the PCBU that the overwhelming majority of the workers interviewed did not feel that the PCBU had adequately consulted them about the capital works, with many of the workers not even being aware of the decision to go with "Option 5". Staff were extremely upset and scared for their safety in the McKay Ward, and believe that they are not being heard by management. Staff did not feel safe in the ward and the majority were very scared for their safety. I advised the PCBU that there appears to be a break down in communication with staff, and that there is a problem with the culture in the ward between workers and the management, and that this issue needs to be addressed. I raised concerns that there appeared to be a culture of fear among staff. I indicated that it was a concern that staff did not feel that they could speak freely or safely to management. I advised that the PCBU has a duty to address this issue, and that I had previously advised the PCBU of this issue. I advised that the risk assessment undertaken for the capital works has resulted in a higher level control being removed (counter), and that there will be a higher reliance on admin controls involving workers having to physically re(s)train patients through VPM that will place workers at a greater risk. I advised that the use and interpretation of the data for incidents around the counter appeared to be flawed. I advised that this interpretation indicates that the incidents are as a result of the actual counter, but negates other factors such as: - the type of communication with patients at the time of the incident (telling patients they can't smoke or be released); - other design factors that relates to increase visibility for staff to be able to identify violence risks to remove themselves or respond; and - patient cohort. I informed the PCBU that I would serve a Prohibition Notice to cease the removal of the counter as the workers have indicated that the counter provides them with a barrier/retreat area.

Internal Review

1. On 27 February 2019, SLHD notified Inspector Ochoa that it intended to apply for an internal review of the decision to issue the Prohibition Notice. On 6 March 2019, SLHD lodged an Internal Review Application with SafeWork. On 8 March 2019, Assistant State Inspector of SafeWork, Maree Davidson, contacted SLHD requesting further information pursuant to section 226 of the WHS Act. On 18 March 2019, SLHD responded to the request to provide additional information.
2. On 29 March 2019, Jim Allison, Manager, Governance and Appeals Unit, SafeWork NSW, wrote to Dr Teresa Anderson, Chief Executive, SLHD, and advised her of the outcome of the internal review. That letter contained the following: You are informed that the above decision by Inspector Ochoa to issue prohibition notice 41529 is varied so that the directions, specifically direction numbered 2, on the prohibition notice now reads: "2. You must ensure that workers are not exposed to occupational violence, so far as is reasonably practicable, by having adequate systems of work using the hierarchy of controls, e.g. physical protection for workers from aggressive and violent patients that includes drug effected patients." All other directions are unchanged. The following reasons are given; - Section 195 of the WHS Act provides the "power to issue a prohibition notice' where an inspector reasonably believes that: subsection 1(b) "an activity may occur at the workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard." - At the time of the workplace visit Inspector Ochoa was able to obtain evidence that supports a reasonable belief that the removal of the counter in the IPCU ward of the McKay Unit may result in serious risk to the health or safety of a person emanating from an immediate or imminent exposure. - As a result of additional information provided by the applicant to the internal reviewer under section 226 of the Work Health and Safety Act 2011 the following further substantiates the risk of workers safety: * Even though "there is no specific job role requiring workers, including clinical staff, to work behind the counter". (response to request for additional information, email dated 18/3/19). The counter that is subject to prohibition notice 41529 does have staff using the counter for a range of tasks including that some workers "choose to attempt de-escalation and violence prevention and management strategies from behind the counter." - The changes to the counter are an attempt to "Improve the therapeutic environment" as identified in the McKay Unit planning Day 11 October 2018. During this planning day, workers were told they could not ask questions during the presentation. It is noted however that "The mass majority of McKay staff expressed their anxiety and protest against this decision explaining that they will not feel safe in the nurses' station and on the ward with the counters removed. McKay staff admitted that the counter has saved their lives during many incidents involving patients and very much feel that this decision is not suited for the IPCU and HDU units." - Inspector Ochoa has numerous notes from workers in the area raising safety concerns about the removal of the counter. - The reviewer received unsolicited correspondence from Leslie Gibbs, WHS Professional Officer of the New South Wales Nurses and Midwives' Association which included a number of safety concerns from workers in regard to the removal of the counter. These concerns included: * "Things are thrown at staff over the counter at almost a weekly basis (especially the telephone). The counter allows us to duck the objects and not walk right into the frontline and taking it in the face." * "Throughout my years at manning East I have been in many situations that has required me to retreat behind the counter in order to remain on the floor and continue to attempt to de-escalate situations. The counter allows us to remain talking to a patient who is physically aggressive….whilst maintaining a safe distance." * "Nursing counter is where we de-escalate situation without compromising our safety. I read advantages of removing nursing counter that provided by management, but those advantages really overweight staff safety".
3. On 12 April 2019, SLHD filed the application for external review pursuant to section 229 of the WHS Act which is currently before the Commission.

Lance Takiari

1. Mr Takiari gave the following evidence: Background to the CCMH 10. The CCMH provides care and support to some of the most vulnerable people in the Sydney community. 11. The CCMH comprises of a number of different units, including the McKay Unit. 12. The McKay Unit consists of two units: (a) The Intensive Psychiatric Care Unit (IPCU), which supports mental health consumers presenting with high acuity and significant behavioural disturbance with the potential to exhibit violent behaviours. (b) The High Dependence Unit (HDU), which supports mental health consumers who are acutely disturbed and are vulnerable (for example, suicidal thoughts, self-harm or risk of absconding) but who have a lower risk of aggression or violence. ………………………………… 15. The counters at the McKay Unit have been in place since the CCMH was established in 2008. From my understanding and enquiries, the height of the counters was initially intended to be lower, with a half-door. I have been unable to ascertain from my enquiries why the design of the counters ended up in the current configuration. 16. Since 2008 when I started work at the McKay Unit, it has been my understanding, and that of other SLHD management, that no staff are required to work behind the counter other than to carry out some incidental tasks from time-to-time. The nature of the majority of work undertaken by clinical staff requires them to be within the consumer areas of the McKay Unit and away from the counter area. From my observation, the main use made of the area behind the counters is as a path of access between the staff base and the consumer areas. Planned Capital Works 17. On 15 June 2018, SLHD received a letter from Dr Nigel Lyons, Deputy Secretary, Strategy and Resources regarding the 2018-19 Mental Health Therapeutic Environments Minor Capital Works Program (TEMCWP)… ………………………………….. 21. On 9 July 2018, Anna Gittens, Facility Planner, Mental Health Service, SLHD and I began preparing a proposal to the TEMCWP in relation to the re-design of consumer-staff interface areas at the CCMH (Proposal). The Proposal was prepared in consultation with a number of stakeholders including SLHD Peer Support Workers, members of the Clinical Services and Mental Health teams, and a Carer Representative. The redesign had been discussed prior to this date. 22. The Proposal included the removal of existing high counters at the CCMH, including two counters at the McKay Unit (one in the IPCU and one in the HDU) and installation of new open-design fixed desks. This design was based on existing open desk arrangements in place at the Professor Marie Bashir Centre for Mental Health at Royal Prince Alfred Hospital and the Manning Unit of the CCMH. ………………………………… 29. It can be seen from the Proposal that consideration for the removal of the counters commenced well before the issue of the Prohibition Notice the subject of these proceedings. As a consequence, much of the information that formed the basis of the subsequent Risk Assessment had already been prepared as part of the Proposal. Further detail about the Risk Assessment is set out in paragraphs 50 to 66 of this affidavit. Evidence underpinning the Proposal 30. As part of preparing the Proposal, SLHD undertook an evidence review of the use and impact of counters in mental health settings. 31. From a clinical perspective, the current state of the evidence suggests that: (a) coercive environments can cause consumers to act contrary to the intent of treatment. They encourage feelings of control and punishment or seclusion and isolation, which complicate and interfere with a consumer's recovery. In contrast, non-threatening environmental design that gives consumers choice and control, and helps them to feel safe and secure, can reduce consumer stress, support the healing process and enhance outcomes; (b) staff-only areas with physical barriers hinder consumer access to staff, prevent quality therapeutic communication and engagement, and impede the development of trusting relationships which are central to recovery-oriented mental health care; (c) partitions between staff and consumers suggest to consumers that they are unsafe, cannot respect staff areas, need to be physically barred and are being judged or imprisoned because of their mental illness. When consumers are "fenced off" physically, they are not given the chance to exercise self-control, demonstrate an understanding of boundaries or exhibit knowledge of social norms. Staff who are visible and accessible help create a normalising environment for consumers; and (d) counters become a focus of attention, encouraging consumers to loiter in order to get attention and have their needs met. 32. From a safety perspective, the current state of the evidence suggests that: (a) counters provide a target for consumer behaviour and create opportunities for violence. Aggression and violence is worsened in environments with features that are stressors to consumers or that obstruct their control. Inadequate or problematic communication between staff and consumers contributes to stress and violence. In contrast, violence is reduced in atmospheres where consumers feel respected, acknowledged, supported and heard; (b) while there is often initial concern from staff that removing barriers will lead to consumers abusing their ease of access to staff, the evidence does not provide a clear basis for this conclusion. Removing counters or making counters more democratic results in improvements to behaviour, reduces aggression and lessens the number of consumers who spend time around staff only areas; (c) moving to open design nursing stations in psychiatric care units does not cause an increase in consumer aggression or violence toward staff. Changes to the physical characteristics of the therapeutic environment have been shown to result in a reduction in rates of seclusion and restraint. 33. In addition, the Australasian Health Infrastructure Alliance, Australasian Health Facility Guidelines Part B - Health Facility Briefing and Planning HPU 131 Mental Health - Overarching Guideline (Guidelines) highlights the importance of creating physical environments that address safety and security risks while supporting recovery oriented mental health… ………………………………. Risk Assessment 50. Health organisations in NSW are required to implement a risk management approach in line with the NSW Health Policy Directive PD2015_043 Risk Management - Enterprise-Wide Risk Management Policy and Framework… 51. NSW Health has adopted the risk management process as outlined in AS/NZS ISO 31000:2009 Risk Management - Principles and Guidelines. 52. The NSW Health Policy Directive PD2018_-13 Work Health and Safety: Better Practice Procedures, summarises the stages of the risk management process. These include: (a) establishing the context; (b) identifying the hazards; (c) assessing and analysing the risks; (d) eliminating or controlling the risks, considering the hierarchy of risk controls; (e) monitoring and reviewing risks and controls; and (f) communicating and consulting during each step of the process… 53. In late 2018 and early 2019, SLHD prepared a Risk Assessment of Existing Counters at the McKay Unit in response to the Improvement Notice (Risk Assessment)… 54. The Risk Assessment was prepared by the following staff (Risk Assessment Team): (a) Lance Takiari, Acting Director of Nursing, Mental Health Service, SLHD; (b) Andrew Ng, Acting Operational Nurse Manager, Mental Health Service, SLHD; (c) Keith Fletcher, Work Health and Safety Manager, Mental Health Service, SLHD; and (d) Anna Gittens, Facility Planner, Mental Health Service, SLHD. 55. Each member of the Risk Assessment Team has experience in undertaking risk assessments in clinical mental health settings. Mr Ng has undertaken clinical (consumer), staff (workforce) and environmental risk assessments, Mr Fletcher has completed multiple risk assessments over a significant number of years in his Work Health and Safety role, both for SLHD and external services, and Ms Gittens has undertaken multiple risk assessments over a significant number of years in her Facility Planner role, both for SLHD and external services. 56. From the time of preparing the Proposal, SLHD had identified the need to remove the counters. This was further supported by the data obtained by the Risk Assessment Team as to the areas within the McKay Unit where aggressive or violent behaviour had occurred over the past 18 months. An analysis of this data showed that the counters and immediate area around the counters have been the location of a number of incidents. For example, the data for the quarter from July to September 2018 showed incidents associated with the counters accounted for 45 per cent of reported incidents at the McKay Unit. 57. The Risk Assessment identified that the actual presence of the counters at the McKay Unit creates a hazard. This is because the counters create a focal point for multiple consumers seeking staff attention to group together in a relatively small space within the IPCU and HDU. This type of grouping can promote and precipitate conflicts between consumers. This finding is supported by the data obtained during the Risk Assessment and by the evidence review of the use and impact of counters in mental health settings obtained when preparing the Proposal. 58. The Risk Assessment identified the following safety issues arising from the counters: (a) The escalation of behavioural disturbance resulting in aggression and/or violent behaviour in and around the counters; and (b) Consumers absconding and/or gaining access between the IPCU and HDU units. 59. The safety issues identified in paragraph 58 arising from the counters create the following risks to staff: (a) A delay in staff retreating to the staff base, a secure area, in the event of an aggressive or violent incident. In most circumstances, the quickest way for staff to access the staff base from a consumer area of the IPCU and HDU is through the door behind each counter. To do this, staff need to go through two doors, one via a key and the other via a swipe card reader: (i) the door from the consumer area of the unit into the area behind the counter via a key; and (ii) the door from the area behind the counter into the staff base via a swipe card reader. (b) Staff are at risk of being trapped if a consumer climbs or jumps over the counter. This poses a risk to their safety and makes it difficult for others to provide assistance. (c) The opportunity to use Violence Prevention and Management (VPM) interventions is significantly limited within the confined space behind the counter, which makes it difficult for staff to safely and effectively intervene. (d) As there is no dividing wall between the IPCU and HDU sides behind the counters, if a consumer climbs or jumps over the counter, they are also able to access the neighbouring unit creating a risk for both staff and consumers in the HDU and vice versa. 60. Using the NSW Health Risk Matrix set out in PD2015_043 Risk Management - Enterprise Wide Risk Management Policy and Framework, the Risk Assessment Team classified the risk of violence and aggression at the McKay Unit as "H" (high) with major consequences and a possible likelihood… 61. In carrying out the Risk Assessment, the Risk Assessment Team initially examined five options that could potentially manage and mitigate the risk of occupational violence in and around the counters at the McKay Unit. The Risk Assessment Team reviewed these options against the hierarchy of controls to determine whether they should be considered in further detail. 62. Of the five initial options, two options involved retaining the counters in one or both units. These two options were not further recommended or considered because the Risk Assessment Team found that they maintained the identified hazard and as such did not remove the source of the risks ie the presence of the counters in both the IPCU and HDU. 63. The Risk Assessment Team identified three possible options to manage and mitigate the risks: (a) Completely enclose the corridor area between the IPCU and HDU and replace the HDU counter with a fixed desk; (b) Retain the existing counter within the IPCU and replace the HDU counter with a fixed desk; and (c) Remove the existing counters from both the IPCU and HDU and replace them with fixed desks. 64. To make the assessment as to the most appropriate option, the Risk Assessment Team drew on the following information: (a) Evidence based models showing successful implementation of fixed desks at the Professor Marie Bashir Centre for Mental Health at Royal Prince Alfred Hospital and the Manning Unit at the CCMH (b) Site visits with five McKay Unit staff to other mental health units in the Sydney Metropolitan area with direct access from consumer areas to staff base without the need for counters in place, including Cumberland Hospital, Hornsby Hospital and Prince of Wales Hospital; (c) Consultation with staff; (d) Therapeutic design guidelines and standards including: (i) The Australasian Health Infrastructure Alliance, Australasian Health Facility Guidelines Part B - Health Facility Briefing and Planning HPU 131 Mental Health - Overarching Guideline…; and (ii) National Safety and Quality Health Service Standards (Second Edition, 2017)… (e) Performance Measurement Strategies; and (f) An evidence review of the use and impact of counters and other similar types of barriers in mental health settings. 65. Based on the information available, the Risk Assessment Team identified that the most acceptable option to mitigate the risk of occupational violence in and around the counter areas of the McKay Unit was option (c): remove the counters at the IPCU and HDU and replace them with fixed desks. 66. It is my opinion that by removing the counters at the McKay Unit it will improve the safety outcomes for staff while minimising barriers to therapeutic engagement between clinicians and consumers. Consultation with staff 67. In the course of carrying out the capital works funded by the TEMCWP, and to inform the Risk Assessment process, SLHD engaged in a range of consultation with staff at the McKay Unit about the removal of the counters. This included: (a) The Planning Day encompassing TEMCWP on 11 October 2018, the purpose of which was to provide an overview of the rationale and plan for the proposed capital works at the McKay Unit and obtain feedback from staff… (b) Three TEMCWP consultation meetings on 15 October 2018, 24 October 2018 and 27 November 2018… (c) At McKay Unit Nursing Staff Meetings on 9 August 2018 and 17 January 2019… (d) At the McKay Unit Multi-Disciplinary Team (doctors, nurses, allied health) Meeting on 7 February 2019… (e) For a four week period between 24 September 2018 and 19 October 2018, three Senior Nurse Managers from the Mental Health Service and I worked morning and evening shifts within both the IPCU and HDU to understand how staff carry out their work on the wards and to gain a better understanding of their safety and clinical concerns. (f) Site visits to other mental health units in the Sydney Metropolitan area (Cumberland Hospital, Hornsby Hospital and Prince of Wales Hospital) with five front line nursing staff. 68. In addition, many staff from the McKay Unit have had the opportunity to work in the Professor Marie Bashir Centre for Mental Health at Royal Prince Alfred Hospital and the Manning Unit at the CCMH where open desk arrangements are in place. 69. The methods of consultation set out at paragraph 67 above provided both formal and informal opportunities for staff to ask questions and express their views to SLHD about the plan to remove the counters and replace them with fixed desks. 70. At some of these meetings, staff expressed the view that removing the counters would result in them feeling unsafe and that they had used the counters as a form of protection in the past. 71. Staff members' concerns about safety have been acknowledged by SLHD. 72. My belief based on undertaking the Risk Assessment and consideration of all the available evidence is that the counters do not functionally provide staff with an effective form of security from consumer aggression or violence. The counters were never designed as a control measure for the risk of occupational violence. Rather, the counters have been shown to be a focal point for aggressive and violent behaviour and, as such, pose a greater risk to staff safety than their removal. The counters also create work practices that are the cause of some of the aggression. 73. My experience with the introduction of fixed desks at the Manning Unit at CCMH was that there was initial staff concern about safety for the proposed change but over time staff valued the new design. To the best of my knowledge, there has been no change in adverse outcomes with the new design at the Manning Unit. 74. I have read the Outcomes Letter dated 29 March 2019 and disagree with the statement that staff were told they could not ask questions during the presentation at the TEMCWP Planning Day on 11 October 2018. The agenda for the day and presentation delivered to staff included a specific section for interactive and dynamic discussion. While I was not initially present at the Planning Day, I was later asked to attend the consultative section and answer questions, at the request of staff. ……………………………….. Comments made by Inspector Ochoa during site visits to CCMH 83. I recall speaking to Inspector Ochoa during site visits carried out on 12 October 2018, 29 October 2019 (2018) and 20 February 2019 during which we had informal discussions about the counters. In one of these discussions, Inspector Ochoa made comments to me with words to the following effect: The counters should be reinforced with screens made of safety glass in the style of a petrol station or bank teller counter. 84. I did not think Inspector Ochoa's comments were appropriate as running a mental health facility like the McKay Unit is considerably different from operating commercial services such as a petrol station or bank. Staff in a petrol station or bank are not required to come out from behind the counter and interact with customers in the same way that mental health staff must interact with consumers to provide clinical assessment, review and therapeutic intervention. 85. At each of the site visits, I and others from SLHD raised the issue of staff entrapment behind the counter with Inspector Ochoa. 86. On these occasions, I also recall informing Inspector Ochoa about the controls that SLHD had in place at the McKay Unit to manage, minimise and respond to the risk of occupational violence, including training staff in the use of VPM and restraint techniques. 87. To the best of my knowledge, Inspector Ochoa has never requested documents related to the training and administration of VPM techniques at the McKay Unit. 88. On multiple occasions, I and others also expressed the view to Inspector Ochoa that VPM and restraint techniques cannot be used safely or efficiently within the confined space behind the counters and that there is a high likelihood that staff would not be able to access the area behind the counter to properly administer these techniques in the event of an incident. Effect of the Prohibition Notice 89. While the capital works are occurring at the McKay Unit, consumers from the HDU (McKay West) have been temporarily relocated to an alternate ward, and consumers from the IPCU (McKay East) have been relocated to the HDU (McKay West). This was intended to be a short term measure. The shorter the period that these temporary arrangements are in place, the better the outcomes for both consumers and staff. 90. Until the effect of the Prohibition Notice is resolved and SLHD is able to complete the planned capital works, SLHD will not be able to move these consumers back into their permanent wards. 91. There are inherent risks to staff safety that come with working in an intensive psychiatric care unit such as the IPCU and HDU. For these reasons, SLHD is firmly committed to taking all reasonably practicable steps to improve the operational and therapeutic environment at the CCMH in order to protect the safety and security of its staff. The Prohibition Notice actively prevents SLHD from doing this. 92. The Prohibition Notice removes the opportunity for SLHD to improve the safety and quality of the care it delivers. The overall effect of the Prohibition Notice requires the McKay Unit to operate in a way that SLHD considers to be unsafe. Should the Prohibition Notice remain in force, in my opinion, the counters will always pose a foreseeable, imminent risk of entrapment with the likely result being a serious adverse event for a staff member. This opinion is based on the information I obtained from my personal clinical experience, the evidence obtained for the Proposal, the incident data available, and the Risk Assessment. 93. Another effect of the Prohibition Notice remaining relates to the requirement of the TEMCWP funding that all approved proposals must be completed and claims for payment made by 30 June 2019. By letter dated 20 March 2019, the Ministry of Health confirmed that there will be no roll-over of funds beyond 2018-19… Due to the delay caused by the Prohibition Notice, SLHD risks losing a significant amount of funding from the Ministry of Health to be used to make our workplace safer.

Dr Harold Storm

1. Dr Storm is the Director and Clinical Director, Mental Health Service, SLHD. He has held this position since 2011. In addition, Dr Storm is a current member of the NSW Mental Health Review Tribunal and has been since 2009. Dr Storm gave the following evidence: History of the Counters at the CCMH 14. There were no counters in the equivalent intensive psychiatric care unit at Rozelle Hospital, which was the predecessor to the CCMH McKay Unit. Staff moved directly from the staffroom through a secure door into consumer areas. This is a similar configuration to what is proposed in the capital works for the McKay Unit. 15. The philosophy of the Mental Health Service at SLHD has always been to have clinicians interacting with consumers on the floor of the unit. The use of counters and barriers is antithetical to this approach. 16. I do not specifically recall why the counters were installed as part of the original configuration of the McKay Unit for when it was opened in 2008. I do recall, however, that the Department of Health policies that existed at the time gave little flexibility for staff input into the design modifications undertaken by builders, once construction was underway. Risk Assessment 17. I, together with Dr Teresa Anderson, reviewed the Risk Assessment of Existing Counters (Risk Assessment) prepared by Lance Takiari and others in response to Improvement Notice Notice No 7-341700 issued by SafeWork NSW Assistant State Inspector Mara Ochoa 29 October 2018 (Improvement Notice)… 18. SLHD provided Inspector Ochoa with a copy of the Risk Assessment in response to the Improvement Notice on 9 January 2019. 19. I was involved in a number of discussions throughout the preparation of the Risk Assessment. 20. I recall that when the option of removing the counters at the IPCU and HDU was first raised with me, I queried whether this was the safest way forward, as I was aware at the time that some staff viewed the counters as providing a sense of protection. 21. However, upon review of the incident report data in the Risk Assessment that showed the large number of incidents occurring in and around the counters, and consideration of the the available clinical evidence, I came to the view that the counters only provided an illusion of security and instead were a "hot spot" and aggregated consumer behavioural disturbance. 22. The counters suggest to consumers that this is the location where they should go to in order to get attention from staff. In an event where multiple consumers approach the counter in an irate or aggressive state, the risk of escalation in behaviour is heightened and becomes concentrated in the one small location. The preferred clinical approach is for staff to interact with consumers on the floor of the McKay Unit. This allows for more private interaction between staff and an individual consumer and gives the opportunity for staff to more effectively de-escalate any potential aggressive and violent behaviour by an individual. 23. In my opinion, a key control to manage the risk of consumer-related violence is ongoing, active clinical risk assessment, which forms part of the staff day-to­day role, when interacting with consumers and administering care. My concern with the counters is that they discourage staff from engaging in this form of practice in favour of passively interacting across a perceived barrier. 24. The counters should not be considered as a safeguard against the risk of consumer-related violence because, in fact, they actually create a major hazard for both staff and consumer safety. 25. The option of enclosing the counters with safety glass, creating a "fishbowl" effect, was also presented to me in the early stages of the Risk Assessment process. My opinion was (and continues to be) that this option is inappropriate from a clinicial perspective, as it is contrary to best practice and would create a greater barrier between staff and consumers. This would prevent the type of therapeutic communication and engagement that is central to recovery­oriented mental health care. Furthermore, the installation of safety glass would create an even greater risk of entrapment behind the barrier because of the confined space in the event a consumer enters the area.

Submissions

1. SLHD relied on written submissions which included the following (footnotes omitted): Applicant's response to Notice 73. On 27 February 2019, SLHD notified Inspector Ochoa that it intended to apply for internal review of the decision to issue the Notice. 74. The Respondent was advised a that the evidence provided to date demonstrated that the continued use of the counters was unsafe and posed a risk of consumer related violence to the staff. 75. In the letter sent Dr Anderson stated: "Use of interface counters is not clinical best practice, they provide a target for consumer behavior, and pose a risk of trapping staff in the event a mental health consumer climbs over the counter. Further the counters delay staff retreating to a secure staff only area (as staff have to enter through two doors) in the event of an aggressive incident. In contrast, the removal of the counters from McKay Unit would be part of a design that contributes to building positive therapeutic relationships with consumers and reducing the likelihood of behavioural disturbance escalating to aggressive or violent behaviour." 76. Dr Anderson also stated: "We believe that the effect of the Notice is to require us to operate in a way that is unsafe and we are concerned that no regard has been given to clinical issues concerning the treatment and management of mental health consumers. This compromises our ability to deliver health services." 77. On 6 March 2019, the Applicant lodged an Internal Review Application with the Respondent's Governance and Appeal Unit under s.224 of the WHS Act. A copy of the Risk Assessment, Prohibition Notice and a plan of the existing layout of the McKay Unit were provided to the Respondent. 78. On 8 March 2019, the Respondent contacted SLHD requesting further information under s.226 of the WHS Act. 79. On 18 March 2019, the Applicant responded to the Respondent's request to provide additional information. A copy of the Risk Assessment and consultation materials, which was provided to the Respondent. 80. On 27 March 2019, the Applicant wrote to the Respondent advising of the operational impact of the Prohibition Notice on its ability to carry out other capital works at the CCMH and requesting any action that might expedite the review. 81. On 29 March 2019, the Respondent by letter advised the Applicant of the outcome of the internal review. Discussions with Inspector Ochoa 82. At various times Inspector Ochoa attended CCMH. During those site visits there were discussions between Mr Takiari and Inspector Ochoa. This included discussions about the counters in the IPCU and HDU wards. 83. According to Mr Takiari comments were made by Inspector Ochoa to the following effect: "The counters should be reinforced with screens made of safety glass in the style of a petrol station or bank teller counter." 84. These comments by Inspector Ochoa to Mr Takiari further supports the Applicant's argument that there was a fundamental misconception by the inspector as to the function of the counter within the Applicant's safety management of the McKay Unit. Mr Takiari's opinion was that the comments made by Inspector Ochoa were not appropriate or relevant. 85. In his affidavit Mr Takiari makes the point that he operation of the McKay Unit is considerably different from operating a commercial service such as a petrol station or bank. Staff in a petrol station or bank are not required to come out from behind the counter and interact with customers in the same way that mental health staff interact with customers to provide clinical assessment, review and therapeutic intervention. 86. Dr Storm in his affidavit is also critical of staff operating from behind an enclosed glass area as it fails to understand the type of therapeutic communication and engagement that is central to recovery-oriented mental health care. Furthermore, it is his opinion that the installation of safety glass would create an even greater risk of entrapment behind the barrier because of the confined space in the event a consumer enters the area. 87. Mr Takiari's evidence is that he had spoken to Inspector Ochoa about the range of risk control measures that the Applicant had in place at the McKay Unit to manage and minimise the risk of occupational violence. This included the type of training given to staff in the use of VPM and restraint techniques. However, to his knowledge, Inspector Ochoa has never requested documents or records relating to these control measures. 88. Mr Takiari attests that on multiple occasions, had informed Inspector Ochoa that VPM and restraint techniques cannot be used safely or efficiently within the confined space behind the counters and that there is a high likelihood that staff would not be able to access the area behind the counter to properly administer these techniques in the event of an incident. Reasons for revoking Notice and internal review decision 89. The Applicant relies on all of the above factual matters and evidence to establish that at the time the Notice was issued Inspector Ochoa had not made reasonable inquiries or clarified the facts that were provided by the Respondent. Had Inspector Ochoa properly and thoroughly considered all of the documentation provided to her and the Respondent it would not be rational to conclude as a basis for a 'reasonable belief' that the counters were a control measure and operated to reduce the risk of consumer aggression and violence. 90. The case law establishes that an inspector when considering whether to issue a notice pursuant to s.195 of the WHS Act is not required to undertake a full investigation in order to form a 'reasonable belief. The case law establishes that nevertheless there is a requirement on an inspector to make reasonable inquiries to establish or clarify the facts relied on for the belief that formed the basis for issuing the Notice. 91. The case law also establishes that a reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions. Had Inspector Ochoa and the Respondent taken proper account of the Risk Assessment and all of the other information provided by the Applicant, it would be in contradiction to that evidence to hold the belief that the counters were an effective measure to control the risk of consumer aggression and violence or that the removal of the counters would increase the said risk. 92. The weight of the information provided to Inspector Ochoa and the Respondent clearly showed that the presence of the counter was itself a causative factor for the incidents recorded in the ICPU and HDU Wards and that the continuation of the counters was detrimental to staff and consumer safety as well as being inconsistent with contemporary mental health care. 93. lf not revoked the Notice will significantly reduce and compromise the Applicant's capacity to optimally conduct its operations and to use the most preferred risk assessed measures available to it for controlling the risk of staff being subjected to occupational violence. 94. For all of the above reasons the Applicant asks that the Commission make the orders that: (i) The external review application is upheld; (ii) The decision made on the internal review is revoked; and (iii) The decision to issue Prohibition Notice No 41529 is revoked.

Mara Ochoa

1. Inspector Ochoa gave the following evidence: 4. As part of my current role I respond to matters involving occupational violence in workplaces, including mental health facilities. I am currently working in conjunction with the Psychosocial Directorate on a number of response activities as a result of serious incidents of occupational violence in workplaces across Sydney, which includes mental health facilities. I have attended multiple mental health facilities across Sydney, which includes facilities with forensic patients, forensic facilities, intensive psychiatric care units, high dependency units and acute units. 5. I am currently dealing with incidents and requests for services related to occupational violence across 4 different local health districts, and am working closely with the Psychosocial Directorate. I have also been involved with networking and meetings with inspectors based all over NSW that are responsible for responding to issues of occupational violence in a health setting. 6. Examples of my recent involvement in addressing violence within the health sector include: a. In January 2019 Inspector Megan May & I met with the Former NSW Minister Peter Anderson regarding a security review commissioned by the Hon. Brad Hazard to provide information on the issues of violence we had identified as part of our interactions with various health facilities in NSW. A copy of the report was published and titled "Interim Report - Improvements to security in hospitals" dated February 2019. b. In January 2019, Inspector Megan May and I met with two Clinical Nurse Consultant Mental Health Liaisons from the Prince of Wales Hospital to discuss violence within the health profession. I understand those gentlemen lead the violence prevention program for the general hospital wards (medical/surgery, emergency and neurosciences) at Prince of Wales Hospital. c. I am on the working party for the SafeWork NSW Government Sector Plan which applies to all public health services. …………………………………… CCMH 19. It is my understanding that the Intensive Psychiatric Care Unit is the unit within the CCMH described by the SLHD "supports mental health consumers presenting with high acuity and significant behavioural disturbance with the potential to exhibit violent behaviours". 20. It is my understanding, via discussions with workers in the IPCU and through my observations in responding to incidents at other health facilities, and advice obtained from the Psychosocial Directorate that not all patients, dependent on circumstances, may not be able to be verbally deescalated. ………………………………….. Staff Concern at CCMH 22. Based on my interviews conducted with staff, workers advised me that the counter in the McKay IPCU is used as: a. A physical barrier to separate them from violent persons in the event of a violent incident where they are at risk of being assaulted b. A space from which they can try to deescalate a situation where violence is an immediate or imminent risk to their safety c. A means to be able to safely observe what is happening in the ward in the event of an emergency situation, which includes violence d. A safe space to walk into from the nurses station, that provides workers with visibility of the ward, and provisions to identify hazards and risks prior to entering the unit. Workers have indicated that they do not have any visibility of the ward from the nurses station. e. Staff who are not registered nurses, such as social workers, use the counter when assisting patients. 23. During the process of attending the site with respect to the counter removal I have had several discussions with representatives of the NSW Nurses & Midwives Association (Union), including Mr Leslie Gibbs, with respect to staff concern over the counter removal. SLHD Risk Assessment 24. I have read the affidavits of Lance Takiari and Victor Storm filed on 1 May 2019. 25. I refer to paragraph 33 and 57 of Mr Takiari's affidavit and paragraph 26 to 28 of Mr Storm's affidavit. It is my understanding that the document attached at LT8 to Mr Takiari's affidavit is a copy of the Overarching Guidelines for Mental Health Facilities (General Guidelines) which is intended for Mental Health Units overall and should be read in conjunction with HPU 137 Mental Health Intensive Care Unit Guidelines (ICU Guidelines) attached at LT9. I understand that the General Guidelines and the ICU Guidelines are different. 26. Page 17 of the General Guidelines states that open desk arrangements are preferred with minimal or no use of security glazing, where this approach is supported through rigorous risk assessment. 27. The risk assessment conducted by SLHD provided to me is attached at annexure LT13 to the affidavit of Mr Takiari. I refer to paragraph 20 to 25 of Victor Storm's affidavit regarding the risk assessment. ln my view, the risk assessment does not address the range of contributing factors that has resulted in the incidents of violence that occur at the facility, including the violence in or around the counter. The risk assessment does not address all elements that contribute to the violence at the site, which is not limited to: a. Patient medical condition and acuity of their illness b. Use of stimulant illicit drugs c. History of violence previously displayed by the patient d. Patient cohort e. Patient mix f. Staff skills mix, experience and expertise inclusive of the different types of staff (not all are nurses, some are social workers). g. Staff training h. Behaviour management plans i. Time and location of violence j. Triggers of violence k. Task being undertaken by staff at the time of the incident I. Communication with patient m. Medical procedures n. External factors and influencers such as family o. Situations where de-escalation does not work p. Emergency procedures ………………………………… Risk Factor - Line of Site 30. I refer to paragaphs 24 to 25 of Victor Storm's affidavit. The risk assessment does not address the line of site from staff stations or bases upon the removal of the counter in the IPCU. As the design was, staff would exit the nursing station via a door to the area behind the counter and from there they had visibility of the communal area and corridor area to ascertain whether there was any risk prior to entering the communal area. 31. My understanding is the new design is a nursing station that would have a small window in a door from the nursing station to the outside communal area. Upon exiting the door, staff would be immediately within the communal area. Upon removal of the counter this means nursing staff will have limited visibility of the communal area prior to exiting the nursing station. 32. During my discussions with nursing staff, nursing staff indicated that they had worked at other facilities with a fishbowl design, that is, large glass windows from the nursing station out toward the communal area to allow for staff visibility of patients… The nurses stations located at Hornsby and Prince of Wales Hospital in particular have "fish bowl" settings where staff have a visible line of site of the communal area prior to leaving the nurses station. I understand based on a discussion had with Victor Storm as transcribed in my notebook of 20 February 2019 that a fishbowl arrangement would not be implemented at the site. 33. I have inspected mental health facilities where nurses stations have glass located around the perimeter of the station for visibility. Risk Factor - Psychological ………………………………….. 36. Based on my interviews conducted with staff, it is my understanding that a number of patients who are present in the IPCU are stimulant illicit drug and/or alcohol affected in addition to experiencing mental health and psychological factors including behavioural disturbances. I understand that patients are referred to the CCMH IPCU by other health facilities across the state. I understand that an IPCU is one step down from the maximum Forensic Hospital facility. 37. Based on interviews conducted by me with staff at CCMH, I understand that communication with patients often triggers violence towards staff such as telling patients they could not be released, could not smoke, and could not make a phone call. I understand, based on my discussions with staff, that violence from patients escalates when the patient feels they are not having their needs met. Additional Risk Factors 38. The counter removal risk assessment does not take into account staff who are not nursing staff. For example, contract workers, non-registered nurses, allied health staff and social workers who are not necessarily trained in VPM management or knowledge of the escalation signs and de-escalation techniques. 39. The counter removal risk assessment does not, in my view, take into account potential risk factors such as patients gaining access to the nursing station from the communal area. Without the presence of the counter the likelihood of this occurring is heightened. ………………………………. Improvements to Counter 41. In my view, the counter is a control measure but that does not mean that the counter cannot be improved to isolate workers from violence when required. 42. I refer to paragraph 83 of the affidavit of Lance Takiari and say that the comment about reinforcing the counter related to known control measures in place to prevent violent persons entering an area, and/or prevent weapons being thrown at workers. Such measures are similar to those that can be seen in Emergency Departments. Including glass panelling would also, in effect, make the counter area a "fishbowl" station as suggested at paragraphs 30 to 33 above which, in my view, is not dissimilar to other mental health facilities I have attended. 43. The records of incidents obtained from the SLHD, and the information provided by workers, conformed that there had been multiple incidents where patients had: a. jumped over the counter b. grabbed workers over the counter c. thrown furniture, appliances and objects over the counter at workers, such as chairs, fridge, and kettle. d. Reached over the counter to open the door to the counter. e. Attempted to gain entry to the nursing station door. 44. I refer to paragraph 84 of the affidavit of Lance Takiari and say an enclosed counter does not prevent workers from directly interacting with patients in the unit. It does however provide workers with the ability to be in a secure and safe workspace in the event of violence. 45. I refer to paragraph 85 of the affidavit of Lance Takiari and say that the issue of entrapment behind the counter can be addressed by: a. Improved counter design to prevent persons jumping over the counter b. Introduction of a swipe card entry for ease of entry into the space that is not afforded by the use of the key system. c. Improved counter design to allow for a larger space behind the counter. 46. In my view, there are other design options that would remove the risk of violent patients entering the counter area, and/or could be redesigned to allow for additional space behind the counter. In my view there are likely to be other areas in the facility where VPM restraint holds may be difficult to apply because of the space available, such as toilet and bathroom areas. VPM 47. Through my interaction with other mental health facilities and public hospitals and the assistance of Inspector May whom has undertaken VPM training, I have become familiar with the use of VPM, including de-escalation and restraint techniques. As part of my interactions I have: a. interviewed workers responsible for providing VPM training (trainer) inclusive of a trainer and registered nurse for the forensic hospital. b. served notices related to assessing the adequacy of VPM training intervals c. investigated incidents where VPM restraints and holds were applied when a patient was violent, which resulted in workers being injured during the VPM process. This includes situations where workers have been bitten, kicked, punched, pushed and spat at, during the application of VPM. d. Investigated incidents when VPM was applied and found workers had received injuries such as a fracture, bruising, bite marks, musculoskeletal disorder and psychosocial injury. e. Investigated incident where emergency response was not properly applied and resulted in workers having to use VPM holds on an extremely violent patient for more than 20 minutes. f. Investigated incidents where the VPM hold was not able to be adequately applied and has required the PCBU calling the police and police riot squad to attend the site. 48. I refer to paragraph 80 of the affidavit of Lance Takiari and say that the key control in place to manage, minimise and respond to occupational violence (VPM) is an administrative control that is one of the lowest types of control measure identified in clause 36 of the WHS regulation 2017. 49. I refer to paragraphs 86 and 87 of the affidavit of Lance Takiari and say that I had made initial enquiries with workers about training they received and was able to confirm that VPM training was being given to workers. I recall asking workers about the training they received, and was able to verify that workers in the McKay Unit had been provided with training in VPM. I recall that the Union had raised concerns with me about the introduction of VPM that replaced what staff believed was a more superior training model. 50. I refer to paragraph 88 of the affidavit of Lance Takiari and say that the application of the VPM restraint technique while necessary to undertake in certain circumstances, is an administrative control measure when the hierarchy of controls are applied. Consultation 51. I refer to paragraphs 67-71 of the affidavit of Lance Takiari and say that workers interviewed have indicated that they do not feel that they were adequately consulted about the removal of the counter. The majority of workers indicated that they were primarily given information and were allowed minimal input in the decision to remove the counter. This is documented in my notebook entries for the 20/02/2019.

Maree Davidson

1. Ms Davidson is employed by SafeWork in the position of Assistant State Inspector / Internal Reviewer. It was Ms Davidson who conducted the internal review requested by SLHD and upheld the decision of Ms Ochoa to issue the Prohibition Notice for the reasons set out at [17] above.

Submissions

1. The following submissions were put on behalf of SafeWork (references to Applicant's Submissions (AS) omitted): 11. The inspector's belief that the removal of the IPCU counter would involve a serious risk for workers is supported by the existence of facts that would lead a reasonable person to form that belief. Those facts include: (a) Violence toward workers is a known, foreseeable risk in the IPCU. (b) The risk of work-related stress and resultant psychological harm to persons working in an environment such as the IPCU is also foreseeable. (c) IPCU supports patients who are severely mentally ill and who have potential to exhibit self-harm, aggressive or violent behaviour. (d) Workers in the IPCU undertake duties involving highly agitated clients. For example, nursing staff have to enforce rules and schedule requirements with involuntary patients in a highly agitated state; social workers have to interview and assist agitated patients with personal family matters, income or accommodation issues. (e) The risk of violence is compounded because there are patients in the IPCU who are under the influence of illicit stimulant drugs, including methamphetamines. (f) It is known that the IPCU counter is used by staff to communicate with patients that are highly agitated, who are more likely to exhibit violence towards workers. (g) The IPCU counter is also used by staff when patients demonstrate aggressive or violent behaviour, such as a patient throwing furniture at staff or attempting to punch them… (h) The IPCU counter is used by mixed staff, not only those with a nursing background who may have a greater understanding of administrative control techniques. (i) It is known that workers have needed to retreat from incidents of violence and aggression in the IPCU… j) The risk of violence in the IPCU involves a risk of death as well as serious injury. 12. This is not a case in which an inspector issued a prohibition notice following a one-off visit to the site in question. 13. The inspector's enquiries in this matter were triggered by a request for service over the removal of the IPCU counter from the Nurses and Midwives Union representing its members working in the Concord Centre. The inspector's enquiries took place over some 4 and a half months. Those enquiries involved her exercising her statutory powers to enter the site on no less than 4 occasions, hold discussions with employees, union representatives and managers, and obtain relevant documentation from the applicant. 14. The inspector took notebook statements from a number of nursing staff who voiced strong concerns over the removal of the IPCU counter. For example, one of the nursing staff described the removal of the counter as "insane" while another nurse became visibly distressed and started to cry. 15. The inspector was not required to conduct a full investigation into the matter before forming her reasonable belief: Simon Anthony Green Wilkeen Pty Ltd Tlas Razorback Glass v SafeWork NSW [2018] NSWIRComm 1074 at [22]­[23]. 16. Nevertheless, the inspector sought to establish and clarify the nature of the risk created by the working environment. The inspector obtained from the applicant summaries of reported incidents in the IPCU covering the period from September 2018 to January 2019. Those summaries revealed frequent instances of unprovoked, and sometimes high level, violence and aggression toward nursing staff in the IPCU. 17. The inspector also sought to clarify whether the IPCU counter was used as a physical barrier or safe zone, for the purpose of nursing staff evading actual or potential violent behaviour or attempting de-escalation strategies with agitated patients. Again, the incident data established these matters. For example, on 27 October 2018 "2 staffs were continuously engaging with aggressor through the nursing counter as it was too unsafe for staffs to be on the floor ..." 18. The applicant says that the inspector assumed that the IPCU counter provided physical protection for workers from violent behaviour... This was clearly a logical assumption to make, having regard to the physical dimensions of the counter (1.31m in height), the notebook statements the inspector obtained from workers and the applicant's own incident data. 19. The inspector was able to validly test this assumption through the objective incident data recording that staff retreated behind the physical barrier of the IPCU counter, during many instances of violent behaviour between September 2018 and January 2019. 20. It is uncertain how many times the counter has potentially saved serious injury to nursing staff since it was originally installed in 2008. 21. The enquiries made by the inspector also indicated that the presence of the counter since 2008 has been important for the psychological well-being of nursing staff working in the IPCU. Those enquiries established that it was not only the physical risk to workers that was of concern, but also the psychological impact of feeling unsafe if the counter is removed. This was clearly evident, for example, with the member of staff who spoke to Inspector Ochoa whilst in tears regarding the proposed removal. 22. In terms of the hierarchy of control measures established by cl.36 of the WHS Regulation, the physical barrier of the counter constitutes an engineering control. 23. The inspector formed the belief that the removal of the counter increased the risk for workers because it was an engineering control and the proposed reliance on alternative methods, such as violence prevention management (VPM), were an administrative control which were lower on the hierarchy and fell below an engineering control. This is a matter of considerable weight, which the applicant's submissions fail to address. 24. It is also highly relevant to the inspector's reasonable belief that the counter is used by allied health professionals such as social workers who may not be trained in VPM hold techniques or who may have far lesser experience than nursing staff in applying methods of physical restraint toward patients. 25. The inspector's belief that the removal of an engineering control and its replacement with lesser behavioural controls would involve a likely contravention of the applicant's duty under s.19 was consistent with "the principle" embodied in the objects of the Act "that workers ... should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work ... as is reasonably practicable": s.3(2). Again, the applicant's submissions ignore this matter. 26. Instead, the applicant argues that the counter poses a risk of staff entrapment and/or patients absconding from the IPCU into the adjoining High Dependency Unit (HDU). The evidence shows that the inspector took these matters into account, but found that they were outweighed by the increased risk of physical harm through dismantling of the counter. 27. Indeed, the applicant acknowledges… that the inspector suggested ways to improve the counter area through additional engineering controls - for example, installing Perspex barriers or safety glass (to prevent patients jumping over the counter), erecting a door between the IPCU and HDU counters (to stop patients absconding), and upgrading all door locks to swipe card entry (to avoid any delay in staff members retreating to the counter). 28. The applicant's argument… that the installation of safety glass would create an even greater risk of entrapment is nonsensical. The purpose of the glass would be to keep patients out of the area behind the counter. 29. The applicant says that the counter and/or the safety glass are antithetical to therapeutic communication and engagement with staff. Again, the evidence shows that the inspector took these matters into account, however she was not bound to accept them. Ultimately, the inspector's view was that staff safety was more important than therapeutic considerations, having regard to the acute mental health state of patients in the IPCU. 30. In this regard, the inspector's belief is amply supported by decisions of this Commission, such as WorkCover NSW v Central Sydney Area Health Service (Rozelle Hospital) [2002] NSWIRComm 44 at [89] (Schmidt J): "Empathy, care and even pity for such patients are, however, not a proper basis upon which employees may be permitted to place themselves into danger." 31. The inspector also formed the view that the existing design, including the counter, did not prevent workers from providing services to patients in the ward environment, whether that be in communal areas, court yards, or activities rooms. This view was clearly not unreasonable. 32. Of considerable importance to the inspector's belief was that the removal of the counter meant that staff would walk immediately out of the nursing station into the communal area. The evidence shows that the applicant has not proposed that the nursing station would be a fishbowl (that is, have large glass windows). Rather it will have a door with a small window on it and maybe some higher windows serving to allow natural light to enter… 33. Without the large glass windows of a "fishbowl" design the staff will not be able to see and assess any risks or hazards in the communal area prior to walking out of the nursing station. Such hazards include a patient carrying a weapon or hiding underneath or beside the door. In other words, the visibility afforded to staff by the counter will be lost. This is a highly relevant factor for the inspector's reasonable belief. 34. The applicant says that the inspector has wrongly interpreted the data showing that the counter is a focal point for violence in the IPCU. However, the inspector had evidence that violent incidents often occur when nursing staff are communicating directly with the patient: see Violence in Nursing and Midwifery in NSW: Study Report by Dr J Pich. The applicant does not suggest that an open desk arrangement would avoid such incidents. 35. The applicant's risk assessment failed to acknowledge that the counter is an engineering control. The applicant also assumed in its risk assessment that in an open desk situation, a violent patient would not chase or follow the worker being targeted. It also assumed that the violence may be coming from one patient only. In these respects, the risk assessment was patient based and did not involve a balanced review of patient needs and staff safety. The inspector formed the view, not unreasonably, that staff safety should be more important. 36. The applicant repeats the assertion in its risk assessment that the counter creates a "false impression" that it provides a safe haven. The inspector clearly had regard to this assertion during her enquiries. Moreover, it was reasonably open for the inspector to reject it on the basis that the removal of the counter and the introduction of the open desk design removes the existing control measures that are on the higher end of the hierarchy of control, with the applicant wanting staff to be more reliant on a VPM hold that is an administrative control. 37. It is undoubtedly the case that the nursing station door would be easier to access without the counter in place. The applicant's proposal would offer no effective line of sight to any violence occurring outside the nursing station door. 38. The applicant asserted to the inspector that the union had been consulted for the risk assessment, however the applicant could not produce any evidence to verify this. 39. The inspector took into account the evidence and experience of other psychiatric units relied on by the applicant to support the proposed open desk design in the IPCU. However, the evidence shows that the units where open desks have been implemented are not comparable to the IPCU. Patients coming to the IPCU are often transferred from hospital emergency rooms, after they been scheduled by the Police. Patients in other units are not acute patients with violent behaviours. 40. The effect of the prohibition notice on the applicant's funding for capital works is not relevant to the Commission's task. This is because it has nothing to do with the inspector's reasonable belief. 41. Finally, it is incorrect for the applicant to say that the prohibition notice does not provide the applicant with any other option to address the risk identified in the notice. 42. The notice's varied direction no.2 refers to the applicant having adequate systems of work in place using the hierarchy of controls. The regulator does not specify the systems and it was not required to do so. The selection of appropriate controls is entirely a matter for the applicant to decide, after consultation with the workers and their representatives. Conclusion 43. The evidence does not demonstrate that the inspector lacked the requisite reasonable belief to issue the prohibition notice under s.195 of the WHS Act. The decision on the internal review that persons working in the IPCU were at serious risk of violence, through the proposed removal of the counter and its replacement with an open desk arrangement, was both reasonably open on the evidence, and clearly correct. 44. The evidence also establishes that there was a reasonable basis for the inspector to have formed a view that the removal of the counter would increase the risk of work-related stress in the IPCU, and this might possibly lead to psychological harm for workers. 45. Pursuant to s.229(4) of the WHS Act, the Commission should confirm the decision made by the respondent on internal review.

SLHD in reply

1. The following submissions in reply were put on behalf of SLHD (footnotes and references to the Respondent's Submissions omitted): 1. The Applicant relies on the following submissions in reply to the Respondent's submissions and evidence filed on 27 May 2019. Management of risk 2. The Applicant, as the person conducting the Concord Centre for Mental Health (CCMH), has duties of care pursuant to the Work Health Safety Act 2011 (NSW) (WHS Act). 3. The Prohibition Notice that is subject to external review alleges a potential contravention by the Applicant of s.19 of the WHS Act. Relevantly, s.19 sub-clause (1) requires: "A person conducting a business or undertaking must ensure so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b] workers whose activities in carrying out work are influenced or directed by the person." 4. Section 19 sub-clause (2) specifies that: "A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking." 5. Sub-clauses (1) and (2) of the WHS Act make it clear that the Applicant has the same duty of care both to 'workers' as defined by s7 of the WHS Act and to 'other persons' who may be put at risk from work carried out as part of its business. The latter includes mental health consumers receiving treatment at the CCMH. Section 19 does not differentiate between the two groups of persons. The views of Inspector Ochoa do not reflect all of the persons to whom the duty of care is owed by the Applicant pursuant to s19 WHS Act. 6. The Applicant also has duties under other legislation including the Mental Health Act 2007 (NSW). Mental health in New South Wales is primarily regulated through mandatory policy directives issued by NSW Health rather than via mental health legislation. 7. The Applicant rejects the proposition put by the Respondent… that "the inspector's view was that staff safety was more important than therapeutic considerations" or that this view was supported by the decision of Schmidt J in WorkCover NSW v Central Sydney Area Health Service (Rozelle Hospital) at [89]. The Rozelle case was a plea of guilty to a provision of the Occupational Health and Safety Act 2000 that did not contain the qualification 'in so far as is reasonably practicable' in the duty of care for employers. Improvement Notice Number 7-341700 dated 29 October 2018 was attached to the affidavit of Lance Takiari dated 1 May 2019 as annexure 'LT10'. The 'therapeutic environment' that forms part of the modern approach to the treatment of mental health consumers is closely integrated with safety for both the consumer and staff and has been endorsed both in Australia and overseas. 8. As noted in Growthbuilt v SafeWork NSW at [59] in reference to s.3 (1) [a) and s.3 (2) of the WHS Act that: "... The law often grapples with competing public interests - in this case the health and safety of persons at work and the right of a PCBU to conduct its business lawfully and efficiently. No doubt that is (why) the Object refers to a "balanced ... framework". Hierarchy of control measures 9. The Applicant does not accept the assertion by the Respondent that if the hierarchy of control measures are applied pursuant to cl.36 of the Work Health and Safety Regulations 2017 (NSW) (WHS Reg), then the counter in the IPCU is a superior form of control measure for staff safety to what is proposed by the Applicant's capital works. 10. Section 17 of the WHS Act provides that: "A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate the risk to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable." 11. The Intensive Psychiatric Care (IPCU) ward in the McKay Unit treats mental health consumers with high acuity and significant behavioural disturbance that have the potential to exhibit aggressive and/or violent behaviours. The risk of occupational aggression and/or violence from a mental health consumer receiving treatment is a risk that cannot be eliminated, so far as is reasonably practicable. The duty of care of the Applicant in such circumstances is to manage the potential risk of occupational aggression and/or violence emanating from a mental health consumer by minimising the risk, so far as is reasonably practicable. 12. Clause 36 of the WHS Reg specifies the 'hierarchy of control measures' a duty holder is to apply in circumstances where it is not reasonably practicable to eliminate risks. "(1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety. (2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following: (a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk, (b) isolating the hazard from any person exposed to it, (c) implementing engineering controls. (4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls. (5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment. Note: A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose." 13. The notion that the counter in the IPCU ward constitutes an engineering control that operates to prevent or reduce occupational aggressive and/or violent behavior is based on a misconceived assumption by Inspector Ochoa of its function and whether that function was part of the system of work provided by the Applicant and carried out by nursing staff. 14. The Applicant has repeatedly informed Inspector Ochoa that the counter was never intended to be used a safety barrier or as a safe place to retreat to by staff if a consumer became aggressive or violent. Nor did it form part of the work practices endorsed by the Applicant. 15. The engineered control measure provided by the Applicant for staff who may be dealing with a consumer who becomes aggressive or violent is the secure staff base (nursing station). This provides a far greater level of security and safety in circumstances where there is an immediate threat to the safety of the staff member. The Respondent concedes that: "It is undoubtedly the case that the nursing station door would be easier to access without the counter in place." 16. The Applicant accepts that an unsafe and unapproved work practice had developed in the IPCU in that some nurses had used the area behind the counter to interact on occasions with consumers who had at different times demonstrated aggressive or violent behavior. It is the Applicant's view that the retention of the counter would only further encourage this unsafe practice. It is apparent from the NSW Health policy directive "Engagement and Observation in Mental Health Inpatient Units" and the affidavit of Mr Takiari dated 29 May 2019 that the majority of tasks carried out by the nursing staff require them to be working in the consumer areas for observations, administrating medication, meal times and other activities carried out daily in the ward. 17. The incident data considered in the Risk Assessment conducted by the Applicant amply demonstrates that the counter has not provided an effective barrier or a safe area for staff. The anecdotal evidence obtained by Inspector Ochoa from various nurses further demonstrates the counter was an ineffective control measure irrespective of whether it is characterised as a 'superior' engineering control. To leave the counter in situ will only operate to perpetuate the level of incidents experienced in and around the counter and likely to be used by nursing staff for unauthorised purposes. 18. The proposed removal of the counter from the IPCU can be regarded as the Applicant fulfilling the obligation under cl17 (3) (a) - (a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk. Having identified the counter as the main contributing factor for consumers becoming agitated and potentially aggressive and violent as well as the potential for staff becoming entrapped by a consumer, the removal of the counter and the installation of a touchdown desk would, on the evidence outlined in Mr Takiari's affidavit, operate to reduce the risk. To leave the counter that has been identified as a hazard in accordance with all of the relevant mandatory policy directives by NSW Health for conducting a risk assessment is contrary to the intent of cl.36 of the WHS Reg. 19. The assumption of Inspector Ochoa that the counter in the IPCU is a superior engineering control also fails to take into account the other engineering controls implemented by the Applicant, in addition to the secure staff base. The engineering controls are found in the design and layout of the IPCU ward including the provision of de-escalation rooms, seclusion rooms and the installation of fittings and fixtures that eliminate the potential for their use for self-harm or use as a weapon. 20. The Respondent… asserts that the Violence Prevention Management (VPM) technique is an administrative control that is lower on the hierarchy of control measures and as such: (i) would not provide the same level of safety to staff; and (ii) were inconsistent with the objects of the WHS Act. That latter assertion cannot be supported. Clause 36 (4) provides: "If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls." In other words, the provision envisages that in some work places the opportunity to implement further engineering controls may not be reasonably practicable and as such the legislation allows other control measures to be implemented by a duty holder. This is entirely consistent with the objects of the WHS Act. 21. In addition the use of the VPM is a control measure that is only employed for all levels of behavioural disturbance, aggression and violence. VPM Team Restraint Techniques set out at paragraph 82(b) of the affidavit of Lance Takiari dated 1 May 2019, are used at the upper end of aggression and violence.. The Applicant has provided to staff, procedures and training programs and other less intensive techniques for de-escalating a consumer who is assessed as becoming aggressive or violent. These administrative controls are in accordance with the relevant policy directives from NSW Health and operate to assist staff in their engagement and observations of consumers in the IPCU ward. 22. For personal protection all staff are provided with duress alarms. Prior to 29 October 2018 the Applicant allowed any staff member to use the duress alarm anytime that had a concern about their safety to enhance their sense of security. Inspector Ochoa issued Improvement Notice Number 7-341692 dated 29 October 2018 relating to what was regarded by her as an overuse of duress alarms by staff. The Applicant undertook refresher training with staff in the use of the duress alarm in accordance with the Improvement Notice. Clearly Inspector Ochoa had no concern about the negative psychological impact on staff by requiring the use of the duress alarms to be limited as would arise in her opinion should the IPCU counter was removed. Risk Assessment 23.The Improvement Notice Improvement Notice Number 7-341700 dated 29 October 2018 attached to the first Affidavit of Mr Takiari as annexure 'LT10' specifically directed the Applicant to 'review and as necessary revise control measures implemented for use of the counter in the prevention of client related violence towards staff in the Mckay Ward." The notice further details what is to be considered in relation to incidents in and around the IPCU counter. The Applicant undertook a comprehensive risk assessment in the manner it was required to under the NSW Health mandatory policy directives and provided this to Inspector Ochoa on 9 January 2019. 24. It is perplexing that Inspector Ochoa now makes numerous criticisms of the risk assessment undertaken. Had Inspector Ochoa required other matters to be considered in the review they ought to have been specified in the notice was issued. That was not done. Nor had the matters now relied on by Inspector Ochoa in her statement been raised at the time she received the risk assessment. Reasonable Belief 25. The Respondent states that 'the catalyst for the prohibition notice was the applicant's advice during the inspector's site visit on 20 February 2019 that the applicant would proceed with the dismantling of the counter 1 week Iater...". This clearly shows that the underlying belief of Inspector Ochoa at the time the notice was issued was that the counter provided a control measure for the risk of occupational aggression and violence in the IPCU ward. For all of the reasons outlined in the affidavits of Mr Takiari, Dr Storm and the Applicant's submissions, the assumption made by Inspector Ochoa was not a reasonable belief in all of the circumstances. 26. The evidentiary matters relied on by Inspector Ochoa for the assumption that the counter was a control measure is described by the Respondent as: "the physical dimensions of the counter", the "notebook statements the inspector obtained from workers"' and "the applicants own incident data". That basis for the making the assumption is not sufficiently broad, balanced or objective. It does not satisfy the principles set out in Growthbuilt v SafeWork NSW as to what test applies and what is to be taken into account to determine if a 'reasonable belief' existed. Nor do the evidentiary matters relied on by Inspector Ochoa to make the assumption about the counter being a control measure satisfy the requirement to make reasonable inquiries to establish or clarify the facts as referred to in the Growthbuilt decision at [95]. 27. The Applicant does not accept that it the assumption that the counter was to act as a barrier was a 'logical assumption' for Inspector Ochoa from the evidentiary matter of the dimensions of the counter, the notebook statements and the incident data. The 'testing' of this assumption by Inspector Ochoa consisted of no more than a review of incidents over a four month period and carries little, if any weight given the Applicant's risk assessment considered the data over an 18 month period as well as the mandatory policies and reports of NSW Health and guidance literature such as the "Australasian Health Infrastructure Alliance, Australasian Health Facility Guidelines Part B - Health Facility Briefing and Planning HPU 131 Mental Health - Overarching Guideline." The report of Dr Jacqui Pich referred to and relied on by Inspector Ochoa is generic in its application and not specific to mental health facilities. As such the report has little, if any, relevance to the operation of the IPCU and HDU wards. 28. The tests relied on by Inspector Ochoa for maintaining the assumption the counter was an engineered control measure do not satisfy the requirements in the Growthbuilt decision at [96] that she had adopted a 'reasonable and balanced approach'. 29. Given the operational complexities of managing the risk of occupational aggression and violence in a mental facility such as the McKay Unit the enquiries made by Inspector Ochoa ought of have been wider and taken into account greater consideration of the policies and guidelines that were relied on by the Applicant for the removal of the counter and its replacement with a touch down desk. 30. At every stage during the risk assessment process staff were involved and consulted. This included five front line nurses attending other mental health facilities to observe their layout and design and operation with touchdown desks as well as the data showing reduced incidents at the Professor Marie Bashir Centre and Manning Unit where touchdown desks are in use. Conclusion 31. The evidence demonstrates that Inspector Ochoa lacked a 'reasonable belief to issue the Prohibition Notice. It was not reasonably open on the evidence for Inspector Ochoa to make the assumption that the IPCU counter was control measure to prevent occupational aggression and violence. Rather the evidence supports the view expressed in the Applicant's risk assessment and its supporting reference documents that the counter was a hazard and that the most effective engineering control was its removal and replacement with a touchdown desk. 32. For all of the reasons set out in these submissions the Prohibition Notice ought be revoked.

Determination

1. Subsections 19(1) and 19(2) of the WHS Act are in the following terms: 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
2. The issue of a Prohibition Notice is authorised by section 195 of the WHS Act which is in the following terms: 195 Power to issue prohibition notice (1) This section applies if an inspector reasonably believes that: (a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, or (b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. (2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied. (3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.
3. Section 223 of the WHS Act makes the decision to issue a prohibition notice a reviewable decision. Section 224 of that Act authorises an internal review.
4. Section 226 of the WHS Act deals with the decision on internal review in the following terms: 226 Decision of internal reviewer (1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received. (2) The decision may be: (a) to confirm or vary the reviewable decision, or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. (3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer. (4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information. (5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time. (6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer.
5. Provision for external review is made by section 229 of the WHS Act in the following terms: 229 Application for external review (1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of: (a) a reviewable decision made by the regulator, or (b) a decision made, or taken to have been made, on an internal review. (2) The application must be made: (a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice, or (b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice, or (c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided. (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned.
6. For completeness, clause 36 of the Work Health and Safety Regulation 2017 is in the following terms: 36 Hierarchy of control measures (1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety. (2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following: (a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk, (b) isolating the hazard from any person exposed to it, (c) implementing engineering controls. (4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls. (5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment. Note. A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.

The driver for change

1. The initial proposal from SLHD for funding to redesign the patient-staff interface areas at the CCMH included the proposed removal of the high secure staff counters in the McKay Unit's IPCU and HDU. The proposal was supported in the following terms: The Objective ……………………… The new proposed Consumer Staff Interface areas (touch down desk spaces) objective is to improve the therapeutic interaction between staff and consumers removing the barrier to communication enhancing staff and consumer engagement and ease of access to staff by consumers and visitors. Our Opportunity To create open consumer/staff areas at Concord Centre for Mental Health as designed at Professor Marie Bashir IPU's at RPAH and the Manning Unit at CCMH Goal 1: Remove existing high secure staff counters at Concord Centre for Mental Health Goal 2: Replace with open consumer/staff interface areas (counter, desk and consumer personal belonging storage spaces) Our Proposal 1. Remove high secure staff counters across CCMH (7, Kirkbride, Walker, Norton, McKay HDU, McKay ICU, Manning HDU and the Jara IPU) 2. Replace with new open consumer staff interface areas as per PMB design with secure storage for consumers personable property i.e house keys, money, mobile phones, computers etc. The Reference Material & Evidence supports all proposed initiatives within this proposal. Rationale for Consumer Staff Interface areas (touch down desk space) Feedback from consumers regarding existing counters at CCMH (consumer experience of care) Open desk arrangements were designed at PMB and have enhanced the therapeutic relationship between consumers and staff. One open interface area has been installed into the Manning IPU at CCMH with positive therapeutic outcomes Function: Where possible, staff areas such as staff bases or stations should not be a barrier to communication with consumers and visitors. Used as direct and active clinical engagement observation by staff. Enhances staff and consumer engagement and facilitates consumer access to personable property and improves transparency in the management of consumers personable belongings ………………………………. Provision of a welcoming environment that fosters hope and self-determination 1. Design can positively contribute to building therapeutic relationships. The area is to be designed with a welcoming calming design focus that welcomes consumers to freely access the space and staff i.e. - Offer different activities for consumers to access at the touch down desks i.e puzzle, daily newspaper, telephone access etc. - Comfortable and adequate chairs to ensure the consumer fells (feels) welcome and comfortable using the area - Carpet on the floor and acoustic panels to ensure that the area has good acoustics and is comfortable area to us (use) 2. Foster a positive experience for consumers, families, carers and staff 3. Build a positive engaging therapeutic relationships with the clinical team Provision of a safe, secure and trauma-informed environment 1. Builds the consumer staff therapeutic relationship 2. Helps consumers to feel empowered have good access to staff without physical barriers giving the consumer a sense of control 3. Timely access to staff, existing secure counters consumers report that they spend lots of time waiting at the counter to get staff's attention… to get their attention is an effort… the counter creates a big wall between us, it's like a barrier that creates division and superiority… counter is not helpful to the consumer… I hate that frontbench. It's high and impersonal…
2. The minutes of the McKay Unit Planning Day that was held on 11 October 2018 record the following: Clinical Touchdown desk; the current counters separating the units and the nurses station will be removed and left as desks. The point of this is to improve therapeutic environment.
3. It seems sufficiently clear from this material that the main driver behind the proposed removal of the counter in the IPCU within the McKay Unit was the desire to improve the therapeutic environment for the patients. It is also sufficiently clear that specific consideration of the impact of this initiative on staff safety really only occurred after the protest by staff at the Planning Day on 11 October 2018 and after the involvement of SafeWork in the matter at the request of the NSWNMA.

Section 195 - the test of reasonable belief

1. The test is objective. In the decision of the Industrial Court in Essential Energy v WorkCover Authority of New South Wales ([2012] NSWIRComm 83) Backman J stated at [24]: It should be borne in mind that when Mr Larobina conducted his internal review of the Inspector's decision to issue the Improvement Notice, the matters referred to above only required his assessment in the context of whether or not the Inspector held a reasonable belief that the applicant had contravened s 19, "in circumstances that make it likely that the contravention will be repeated". In accordance with the orthodox approach, the Inspector's reasonable belief is to be assessed objectively: see George v Rockett and Another (1990) 170 CLR 104 at 112. (Emphasis added)
2. The use of the word "reasonable" introduces objectivity into the consideration of whether the Inspector has acted appropriately. Were it otherwise, the legislation need not use the adjective "reasonable". It would depend solely on whether an Inspector forms a belief (see Growthbuilt Pty Ltd v SafeWork NSW ([2018] NSWIRComm 1002 at [55]).
3. The High Court in George v Rockett ([1990] HCA 46; 170 CLR 104) observed at p.112 (references and citations omitted): When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v. Anderson … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers... Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist … It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind.
4. Further, Chief Commissioner Kite SC discussed the test of "reasonable belief" in Simon Anthony Green Wilkeen Pty Ltd T/as Razorback Glass v SafeWork NSW ([2018] NSWIRComm 1074), in the following terms: The Authorities 20 In Sydney Trains v Safework NSW [2017] NSWIRComm 1009; 266 IR 276 Commissioner Newall held at [28]: "Consistent with the conduct of a de novo hearing, I proceed on the basis that the Commission is to come to the decision that it thinks correct and preferable in relation to the initial decision made by the inspector. That will in practical terms mean that the Commission decides the issue between the parties agitated under, in this case, s 72 of the Act. I now turn to that section." 21 Similar formulations were applied by Staff J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 at [50]; and by me in NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; 257 IR 467at [70]; and in Growthbuilt v SafeWork NSW [2018] NSWIRComm1002; 274 IR 317 at [34] - [36]. 22 Also in Growthbuilt I held that: (1) at [55], the test of "reasonable belief" was objective in relation to s 195 of the WHS Act; (2) at [57], the test requires the existence of facts "which are sufficient to induce that state of mind in a reasonable person": applying George v Rockett (1990) 170 CLR 104; (3) at [95], while an Inspector is not required to undertake a full investigation there is a requirement to make reasonable inquiries to establish or clarify the facts; and (4) at [96], "A reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions." 23 I see no reason to depart from these conclusions in relation to s 191 of the WHS Act. The respondent accepted the authority of Growthbuilt applied.

Was the Inspector's belief reasonable?

1. This was not a case where a SafeWork Inspector issued a Prohibition Notice on the spot whilst attending a workplace and without a thorough examination of the alleged contravention(s) of the WHS Act, as was the case in Byrne Demolition Pty Ltd v Safe Work NSW ([2019] NSWIRComm 1008).
2. Inspector Ochoa visited the workplace on multiple occasions over several months, sometimes in the company of Inspector May, before she issued the Prohibition Notice. She spoke to the employees who work on the McKay Unit and with representatives of management. She examined numerous documents and issued a number of Improvement Notices before she issued the Prohibition Notice.
3. The consistent position of the staff who work on the IPCU was one of opposition to the removal of the counter for safety reasons. This opposition had been expressed at the McKay Unit Nursing Staff meeting on 9 August 2018 (at [5]); the Planning Day on 11 October 2018 (at [6]); the consultation meetings on 15 and 24 October 2018 (at [8]-[9]); directly to Inspector Ochoa on 12 and 26 October and 20 November 2018 (at [7], [10] and [12]); and at the further consultation meeting on 27 November 2018 (at [13]).
4. It appears from the minutes of the consultation meetings of 15 and 24 October and 27 November 2018, that, following initial opposition from the staff, agreement had been reached with management that the counter in the IPCU would not be removed, at least until after the "touch down" desk arrangement had been trialled in the HDU (at [8]-[9] and [13]). However, this position changed following the risk assessment which was subsequently conducted.
5. It was only after SafeWork became involved in the matter and Improvement Notice 7-341700 was issued by Inspector Ochoa on 29 October 2018 that the risk assessment was undertaken by SLHD. The Risk Assessment Team, the composition of which is set out at paragraph 54 of Mr Takiari's affidavit (at [19]), comprised four managers of the Mental Health Service, SLHD. Given that the removal of the counters in the IPCU and HDU had been proposed by management as far back as July 2018 (see paragraphs 21-22 of Mr Takiari's affidavit at [19]), it is unsurprising that the risk assessment, when it was eventually conducted, concluded that the removal of the counter in the IPCU would not pose a safety risk to the staff who worked on that unit. However, it is apparent that Inspector Ochoa did not agree with the conclusion reached in the risk assessment conducted by SLHD. Her belief as to the risk that the removal of the counter would pose to the safety of the staff was based on her discussions with those staff, her examination of the incident data and her knowledge of the layout of other comparable mental health facilities.
6. In support of the proposal removal of the counter in the IPCU, SLHD submits that subsections 19(1) and 19(2) of the WHS Act place equal obligations on it to ensure, so far as is reasonably practicable, the health and safety of the staff and the patients in the IPCU. This submission is misconceived. There is no persuasive evidence before the Commission that retention of the counter in the IPCU has put, or will put, at risk the health and safety of the patients, whereas there is evidence from the staff who work in the unit, which was accepted by Inspector Ochoa, that the removal of the counter will pose a risk to their health and safety.
7. The motivation behind the proposed removal of the counter in the IPCU is the desire of SLHD to enhance the therapeutic environment for the patients. Whilst this motivation is commendable, it cannot override the obligation that the WHS Act places on SLHD to ensure, so far as is reasonably practicable, the health and safety of the staff on the unit.
8. I reject the argument put forward by SLHD to the effect that retention of the counter in the IPCU poses a greater risk to staff safety than would its removal. In this respect, I accord greater weight to the opinions of the staff who actually work on the unit as to the risks posed to their safety, than I accord to the views of SLHD management, whose opinions are clearly conditioned by what is perceived by it to be an initiative designed to enhance the therapeutic environment for patients in the IPCU.
9. In support of its position that the existing counter poses a safety risk to staff, SLHD argues that patients are able to jump over the counter or otherwise enter the space between the counter and the nurses' station and trap staff in a small area which would impede other staff from rendering assistance by use of violence prevention management techniques. I do not find this argument compelling for a number of reasons. Firstly, the existing counter could, if SLHD were willing, be modified to make it extremely difficult, if not impossible, for patients to enter the space behind it. Secondly, replacement of the counter with "touch down" desk of lower height will make it easier for patients to get over or around and behind the desk and attack staff. Thirdly, removal of the counter will deprive staff, on exiting the nurses' station, of the ability to look out and observe what is happening in unit from a relatively safe position before proceeding further. Because of the configuration of the windows in the nurses' station, which does not have the "fishbowl" design of some other mental health facilities identified by SLHD, staff will lose this line of sight into the unit before they proceed out onto the floor.
10. One of the underpinning premises of the position adopted by SLHD is that the existing counter in the IPCU is a focus point for patient aggression. Given the high level of acuity of the patients in this unit, one cannot be confident that the proposed replacement of the counter with a "touch down" desk would not provide a similar focus point for patient aggression, but with less physical protection for the staff. The risk assessment conducted by management did not deal adequately with this possibility.
11. Another of the premises which appears to underpin the desire of SLHD to remove the counter in the IPCU is the assumption that such counters are a bad thing from a therapeutic environment perspective in a health care setting. However, one of NSW Health Policy Directives, "Preventing and Managing Violence in the NSW Health Workplace - A Zero Tolerance Approach", which is annexed to Mr Takiari's affidavit and relied upon by him, contains the following: Generally the risk management process is made up of the following steps: Step 1 Establish the context ……………………………….. Step 2 Violence Hazard Identification ……………………………….. Decide who might harm or be harmed and how? What potential violence hazards arise from the unit / service's patients / clients or others, for example: * Alcohol and drug affected * Medical / Psychiatric conditions ……………………………… Step 3 Assess / Analyse the Violence Risks Risk is the probability, high or low, that somebody could cause harm or be harmed by an identified hazard, considered in conjunction with a consideration of how serious the harm could be. Risk is judged or assessed in terms of likelihood (how likely it is that the event will happen?) and consequence of impact (how bad will an event be if it happens?). A simple example of a risk assessment action is where the likelihood of a patient brandishing a pair of scissors left lying around may result in a staff member being injured. ……………………………….. Step 4 Control the risks ………………………………. Level 1 - Elimination ………………………………. Level 2 - Substitute the hazard with something safer Examples of substituting a hazard with something less hazardous to include: * Transferring a client to a unit that is better able to manage disturbed behaviour ……………………………… Level 2 - Isolate the hazard from people Examples include: * Having secure staff areas that patients cannot easily enter * Providing time out rooms for patients experiencing behavioural problems * Designing counter heights / widths so that staff cannot be easily assaulted over the counter * Physical barriers between staff and others, such as desks or screens (emphasis added)
12. It appears from the above that counters, such as the one in the IPCU which SLHD wants to remove, are not universally regarded within NSW Health as having no positive role to play in protecting staff from disturbed and violent individuals, such as some of the patients that are hospitalised in the IPCU from time to time.
13. In WorkCover NSW v Central Sydney Area Health Service (Rozelle Hospital) ([2002] NSWIRComm 44), Central Sydney Area Health Service ("CSAHS"), a predecessor to SLHD, was prosecuted for a breach of subsection 15(1) of the Occupational Health and Safety Act 1983 ("OHS Act") which was in the following terms: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.
14. I also note that subsection 16(1) of the OHS Act was in these terms: 16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
15. The prosecution of CSAHS concerned events which arose on 6 April 1997, during which nurses employed by the defendant at Rozelle Hospital were assaulted and injured by a patient. CSAHS had entered a plea of guilty to the charge and, in mitigation, produced evidence which demonstrated its commitment to its obligations under the OHS Act, as well as under other relevant legislation such as the Mental Health Act 1990, which required that patients received "the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given" (at [38]).
16. Some of the observations made by her Honour are apposite to my consideration of the matter presently before the Commission, especially the passages cited below (at [89]-[91]): 89 Given the evidence as to the conditions from which TR and other patients treated at Rozelle suffer, and the fact that the defendant and those whom it employs are dedicated to the care and treatment which such people require, it can readily be appreciated that staff might be slow to move to physically restrain a patient. That, indeed, would seem consistent with the policies in evidence. Empathy, care and even pity for such patients are, however, not a proper basis upon which employees may be permitted to place themselves into danger. There can be no doubt that in a situation where the choices facing the defendant are physical intervention in order to ensure that a patient is restrained from hurting others and a risk to the health, welfare or safety of employees, if such steps are not taken, the absolute obligations imposed upon the defendant by s15 of the Act, require that safety of employees be preferred. 90 No matter how dedicated to patient welfare a nurse or other employee might be, it is inconsistent with the requirements of the Act, that the defendant permit them to be the subject of physical assault, or indeed repeated physical assault, by patients who are not restrained from harming others. Employment on such a basis is not permitted by the Act. 91 The evidence which the defendant led was that it is only a small percentage of patients who give rise to risk of assault of staff and others to whom the defendant owes obligations under the Act. That fact does not, however, detract from the need for the defendant to ensure that its obligations are met, when such patients are admitted at Rozelle Hospital. (emphasis added)
17. I agree with the submission put on behalf of SafeWork at paragraphs 29-30 of their written submissions (at [24] above). It follows that I reject the submission of SLHD at paragraph 7 of their reply submissions (at [25] above). SLHD appears to submit that the words "so far as is reasonably practicable" in subsections 19(1) and 19(2) of the WHS Act, in some way distinguish those provisions from the provisions of the OHS Act which were considered by Schmidt J in the Rozelle Hospital case. It was put that "the 'therapeutic environment' that forms part of the modern approach to the treatment of mental health consumers is closely integrated with safety for both consumer and staff…". That may well be so but considerations of what is "reasonably practicable" to ensure the health and safety of workers and others do not subjugate that obligation to the desirability of enhancing the therapeutic environment for patients.
18. In the context of the IPCU in the McKay Unit at the CCMH, and the characteristics of its clientele, the obligations imposed on SLHD by subsections 19(1) and 19(2) of the WHS Act certainly require that the safety of employees be preferred over the desire to enhance the therapeutic environment for the patients.
19. The belief held by Inspector Ochoa that an activity may occur at the IPCU that would involve a serious risk to the health and safety of the staff working on that unit emanating from an imminent exposure to a hazard and that this activity, namely the removal of the counter, was likely to contravene the provisions of the WHS Act, was based on the Inspector's thorough assessment of all of the information provided to her by employees and by management. Such a belief held by a SafeWork Inspector of Inspector Ochoa's experience, after having undertaken such a rigorous assessment both for and against the proposal, is not to be lightly disregarded. It was a reasonable belief. It is a belief which I share.
20. I confirm the decision of Inspector Ochoa to issue SLHD with Prohibition Notice 41529 which is the subject of these proceedings. It follows that the application by SLHD for external review of that decision must fail and be dismissed.
21. I so order. John Murphy Commissioner 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. Decision last updated: 01 October 2019