Victorian WorkCover Authority v Melbourne Health
[2013] VCC 841
•28 June 2013
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-04537
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| MELBOURNE HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 20, 21 February 2012 and 7 March 2012 | |
DATE OF JUDGMENT: | 28 June 2013 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Melbourne Health | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 841 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATOIN
Catchwords: Whether the defendant has a “legal liability to pay damages” pursuant to s138(1) of the Accident Compensation Act 1985, as amended
Legislation Cited: Accident Compensation Act 1985, s138; Mental Health Act 1986
Cases Cited:Victorian WorkCover Authority v Kenman Kandy Pty Ltd & Ors (2002) 6 VR 666; Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520; DSG Pty Ltd v Victorian WorkCover Authority (2008) 20 VR 514; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Judgment: Application Dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R P Gorton QC with Mr J C Simpson | Russell Kennedy |
| For the Defendant | Mr J J Noonan SC with Mr A D Clements | Minter Ellison |
HIS HONOUR:
1 Pursuant to s138 of the Accident Compensation Act 1985, as amended (“the Act”), the Victorian WorkCover Authority, which I shall refer to as the plaintiff, seeks an indemnity from Melbourne Health, which I will refer to as the defendant, in respect of compensation paid to and on behalf of Ms Kornelija Wildblood (“the worker”)[1] pursuant to the provisions of the Act.
[1]At the time of injury, the worker was known as Kornelija Joksimovic
2 There is no dispute between the parties:
(a) that at all material times, the worker was employed by Australian Nursing Agency Pty Ltd (“the employer”);
(b) that at all material times, the defendant was the occupier, and responsible for the care, conduct and management of the Sunshine Psychiatric Unit located at Sunshine Hospital (“the premises”);
(c) the employer contracted with the defendant to provide the services of the worker to perform psychiatric nursing duties at the premises;
(d) on or about 5 June 2004, the worker was lawfully at the premises carrying out work as a psychiatric nurse when a patient, Bernadette Fisher Groves (“Groves”), applied both her hands with some force to the worker’s right wrist, causing her to suffer personal injury; to wit, a spiral fracture of her right arm (“the incident”);
(e) that the worker lodged, pursuant to the provisions of the Act, a Claim for Compensation on the employer on or about 22 September 2004 and was thereafter paid compensation pursuant to the Act, amounting to approximately $113,345.42.
Section 138 of the Act
3 Given the date of injury suffered by the worker, it is the version of s138 which existed at that time which is applicable.[2] Accordingly, s138 of the Act reads:
[2]See Victorian WorkCover Authority v Kenman Kandy Pty Ltd & Ors (2002) 6 VR 666; however, note s299 of the Act
“(1)Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority, a self-insurer or an employer was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria or that would, but for section 134A, create such a liability in respect of the injury or death, the Authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with this section.
(2) In determining for the purposes of subsection (1) whether an injury or death was caused under circumstances creating a liability in a third party to pay damages or that would have created such a liability if the injury or death had been caused in Victoria in respect of the injury or death, Divisions 8A and 9 of Part IV must not be taken into account.
(3) The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of-
(a)the amount of compensation paid or payable under this Act in respect of the injury or death; and
(b)the amount calculated, were it not for the provisions of this Act, the Transport Accident Act 1986 and Parts VB, VBA and X of the Wrongs Act 1958, in accordance with the formula-
where—
Xis the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
Ais the amount of damages (disregarding the extent, if any, whereby any other person’s act, default or negligence caused or contributed to the injury or death) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury or death;
Bis the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury or death to the worker or the dependants of the worker under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.
(4) Judgment against or settlement by a third party in an action by a worker, or dependants of a worker, in respect of an injury or death referred to in subsection (1) does not eliminate or diminish the right of indemnity given by this section, except to the extent provided in this section.
(5) If the Transport Accident Commission is liable to make payment to the Authority under section 137(5A) or to a self-insurer under section 137(5B) in respect of a death or injury and the Authority or self-insurer is entitled under this section to be indemnified by a third party in respect of the liability, the entitlement of the Authority or selfinsurer is subrogated to the Transport Accident Commission by virtue of this sub-section.”
4 The High Court[3] has approved the comments of Winneke P in Esso Australia Ltd v Victorian WorkCover Authority & Anor,[4] when he described the nature of the indemnity under s138 of the Act in the following way:
“… [T]he statutory right of indemnity conferred by the … Act upon the person who has paid the compensation is not to be equated to the cause of action which the worker would, but for the … Act, have had against the person liable to pay damages to him. This is so notwithstanding the fact that it is an ingredient of the statutory right, sought to be enforced, that the person from whom the indemnity is sought was liable to pay damages to the worker. The claim to enforce the entitlement to indemnity is not a claim in tort. It is a cause of action created by statute for an indemnity against a person liable to pay damages to another … .”
[3]See Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 527
[4](2000) 1 VR 246 at 257
5 The High Court also accepted the construction of s138 of the Act as put forward by Winneke P.[5] Winneke P had observed:
“… Thus, it is said that the words ‘the amount of compensation paid or payable under this Act’, where appearing in subs (3)(a), should be read as meaning ‘accrued and payable’; and that they cannot reasonably contemplate an amount produced by a calculation of all future payments which might be payable to the worker pursuant to the Act. Further, it is said that subs (3)(b) is to be construed as providing a ‘ceiling’ to the indemnity contemplated by the section — a ‘ceiling’ produced, as I have said, by the third party’s notional liability at common law for pecuniary and non-pecuniary loss, and then reduced in accordance with the third party's share of responsibility for that loss. … .”[6]
[5]See Victorian WorkCover Authority v Esso Australia Ltd (op cit) at page 530
[6]See Esso Australia Ltd v Victorian WorkCover Authority & Anor (op cit) at page 252
6 Later, Winneke P continued:
“… Construed in this way, it is said, the court can identify, once and for all, an entitlement to indemnity against a negligent third party which will not exceed that party’s proportionate responsibility for the worker’s notional damages at common law for pecuniary and non-pecuniary loss. If the notional damages at common law, assessed in accordance with subs (3)(b), are less than the amounts of compensation already paid or accrued and payable, then the entitlement to indemnity contemplated by the section remains the amount so assessed. … .”[7]
[7]See Esso Australia Ltd v Victorian WorkCover Authority & Anor (op cit) at page 252
7 There is no issue that the defendant can be a third party as contemplated by s138 of the Act.[8]
[8]See generally DSG Pty Ltd v Victorian WorkCover Authority (2008) 20 VR 514, and in particular, at paragraphs [87]-[89]
8 The parties agree that Factor A (that is the notional damages) amount to $220,000. Factors B and C are not relevant. Furthermore, as I have already recorded, the amount of compensation paid to or on behalf of the worker, at least to date, is $113,345.42.
The critical issue between the parties
9 The critical issue between the parties is whether the injury suffered by the worker “was caused under circumstances creating a liability in … [the defendant] …” within the meaning of s138(1) of the Act, and if so, the extent of such liability expressed as a percentage in Factor X contained in s138(3)(b) of the Act.
The proceedings
10 At the commencement of this matter, I granted leave to the plaintiff to file and serve a Further Amended Statement of Claim wherein it is alleged, amongst other matters, that:
(a) At all relevant times the defendant applied a process of seclusion (“the seclusion process”) which provided for the sole confinement of a patient at any time in a single room at the premises where the doors or windows are locked from outside in accordance with procedures set out in a seclusion policy (“the seclusion policy”);
(b) Certain procedures were imposed under the seclusion policy by which the defendant was required by a senior staff member to, amongst other things:
(i) ensure that all staff participating in the seclusion process are aware of their individual and collective responsibilities by a senior staff member taking a leadership role in structuring the seclusion process;
(ii) pursuant to the aforesaid leadership role, to ensure that each staff member participating in the seclusion process knows (inter alia):
§ who is to hold and support various parts of the patient’s body, including the left arm and/or hand and the right arm and/or hand;
§ who is to have any other and, if so, what physical contact with a patient;
§ who is to talk to the patient and when;
(c) The worker suffered her injury at the premises when participating in the seclusion process as a result of the patient, Groves, twisting her arm;
(d) In addition to the worker, there were five other staff members of the defendant participating in the seclusion process under the supervision and direction of the defendant’s associate nurse unit manager – Malcolm Park (“Park”);
(e) In the seclusion room, various staff members surrounded Groves, and Park nominated the worker to walk up to Groves front-on, pull Groves’ blouse out and look to see whether she had a bra on, and to tell Groves that her behaviour was unacceptable within the psychiatric unit;
(f) At all material times, the defendant owed a worker a duty of care “akin” to the duty owed by an employer to an employee and included “but was not limited to” a duty to provide a safe system of work, a safe place of work and a sufficiently trained competent fellow employee, and to comply with the requirements of the seclusion policy so as to take reasonable steps to protect the worker from the risk of injury while participating in the seclusion process within the single room involving Groves;
(g) The injuries suffered by the worker were “caused as a result of the negligence of and/or breach or one or more of the said duties by the defendant, its servants and agents”. The particulars of negligence and breach of duties were said to be:
“(a)failing to comply with the requirements imposed under the seclusion policy referred to …
(ia)Park not undertaking any or any proper planning care for the seclusion process by or after the time when he had decided to remove Groves from the lounge to the single room by failing to inform Groves in the proper manner at such time of:
Athe reason why she was being secluded;
Bhow she would be observed, managed and reviewed during the seclusion process
(i)Park not ensuring that the aforesaid five staff members were aware of their individual and collective responsibilities when participating in the seclusion process within the single room involving Groves;
(ii)Park not taking any or any effective leadership role in structuring the seclusion process within the single room involving Groves;
(iii)Park not informing and/or requiring one or more of the aforesaid five staff members to “hold and support” various parts of Groves’ body when participating in the seclusion process within the single room;
(iv)Park not directing one or more of the aforesaid five staff members to take reasonable steps to restrain Groves’ left arm and/or hand and right arm and/or hand when nominating the worker to participate in the seclusion process within the single room involving Groves;
(v)Park causing or permitting Groves to apply the aforementioned ‘karate style’ technique to the worker’s right arm after he had nominated the worker to perform the matters referred to in sub-paragraphs (iii)(A) – (C) of the Particulars sub-joined to paragraph 10 above;
(vi)Park unreasonably and without prudent caution nominating the worker to perform the matters referred to in sub-paragraphs (iii)(A) – (C) of the Particulars sub-joined to paragraph 10 above when they ought to have been performed by one or other of the aforesaid five staff members;
(vii)Park causing or permitting the aforesaid five staff members to surround Groves within the single room without adopting defensive measures against the risk of significant injury to the worker from physical aggression towards her by Groves;
(ab) Failing to adequately or at all instruct, train or inform the worker in relation to the seclusion process;
(ac) Failing to provide the worker with instruction, training or information in relation to the aforesaid requirements and operation of the seclusion policy;
(ad) Failing to provide the worker with instruction, training or information in relation to dealing with physically aggressive and/or violent patients when participating in the seclusion process;
(ae) Failing to warn or caution the worker of the risk of significant injury from an attack by a patient when participating in the seclusion process so as to enable her to adopt defensive measures in anticipation thereof;
(af) Failing to nominate and request one or other of the aforesaid five staff members (instead of the worker) to perform that matters … [referred to] …;
(b) Failing to provide, enforce and maintain a safe system of work;
(c) Failing to provide the worker with adequately trained fellow employees;
(d) Failing to provide the worker with competent supervision;
(e) Requiring and/or allowing the worker to place herself in a situation of danger;
(f) Permitting the worker to be assaulted by Bernadette Fisher Groves;
(g) Failing to adequately restrain Bernadette Fisher Groves so that the worker could safely perform all duties;
(h) Failing to ensure that the worker could safely perform her duties in all of the circumstances;
(i) Failing to provide, enforce or maintain a safe system for dealing with aggressive patients;
(j) Failing to anticipate that a patient in a psychological ward might attack nursing staff;
(k) Failing to provide, enforce and maintain a system of work that reduced, so as far as possible, the risk associated with the obvious possibility that a patient in a psychological ward might attack nursing staff;
(l) Failing to provide the worker with adequate training;
(m) Failing to provide the worker with adequate supervision;
(n) Failing to provide the worker with adequate instruction in relation to dealing with aggressive patients;
(o) Failing to warn the worker as to the possibility of patients becoming aggressive and/or violent;
(p) failing to warn the worker of a possibility of Groves becoming aggressive and/or violent;
(q) Exposing the worker to a risk of injury of which the defendant knew or ought to have known;
(r)Exposing the worker to a risk of injury which could have been avoided with reasonable care on the part of the defendant;
(s)Failing to provide a safe system of work;
(t)
Failing to provide a safe system of work;(u)Exposing the worker to unnecessary risk of injury;
(v)Failing to supervise the work of those working on the premises properly or at all.”
(sic).
The reference in Particular (a)(v) and (a)(vi) to the sub-paragraphs (iii)(A) – (C) of the Particulars sub-joined to paragraph (10) refers to the following:
(iii) Park then nominated a worker to request that she (inter alia):
A Walk up to Groves front on;
BTo pull Groves’ shirt out and look to see whether she had a bra on;
CTell Groves that her behaviour was unacceptable within the psychiatric unit.”
11 The seclusion policy relied on by the defendant was tendered by the plaintiff.[9] Such policy is dated January 2005 but it was agreed between the parties that the terms of the policy in force at the time of the incident were the same. The salient aspects of such policy include:
[9]See Exhibit 1. The policy is contained at pages 84 to 87 of the Court Book
(a) The policy applies to the defendant and its purpose is to “inform staff of service responsibilities in the use of ‘seclusion’”;
(b) “Seclusion” is defined as “the sole confinement of a person at any hour of the day or night in a room where the doors and windows are locked from the outside”;
(c) The policy on exclusion is that:
(i) seclusion must only be used to protect the person or any other person from an immediate or imminent risk to his or her health and safety and/or to prevent the person from absconding;
(ii) seclusion must be approved by the authorised psychiatrist (who is defined to mean a qualified psychiatrist who is appointed under s96 of the Mental Health Act for a particular service), a delegate or the senior registered nurse on duty;
(iii) staff must ensure that the consumers “right to privacy, dignity, safety and confidentiality is preserved”;
(iv) staff must consider specific gender, cultural and language-related issues so that the needs of the consumers are met;
(v) seclusion must only be used as a therapeutic strategy after all other options have been tried and have been ineffective;
(vi) staff must inform the consumer being secluded of the decision, why it has been made, how they will be observed, managed and reviewed … .
12 The policy notes that although seclusion usually occurs in an emergency, its application should be based on well-established and understood principles and practice. In particular, the policy states that no matter how brief the planning of seclusion may be, it should encompass the need to:
· Gather sufficient clinical staff to move the person safely into the seclusion environment;
· Include female staff members in a process when a female consumer is being secluded;
· Inform the person being secluded of the decision, why it has been made, how they will be observed, managed and reviewed. This is best done by one staff member speaking in a quiet, reassuring manner, explaining what is happening to the consumer throughout the process. Reassure them that they will be safe. Use interpreters as appropriate;
· Ensure that all staff participating in the seclusion will be aware of their individual and collective responsibilities. This will be assured by a senior staff member taking a leadership role in structuring the process, so that each staff member knows who is to hold and support various parts of the consumer’s body, who is to talk to the person, open the seclusion door et cetera;
· Remove all potentially dangerous items such as pen knives, belts, jewellery, steel cap boots, laces et cetera from the person to protect them from any possibility of self-harm:
- where the shoes are worn, clients must be provided with suitable alternative footwear
- the search of the consumer’s clothing must be only at the discretion and the direction of the senior nurse leading the seclusion process.
13 Although there are other requirements contained within the seclusion policy, none were relevant to the circumstances of this matter. I should also add that there was no attack by the plaintiff on the adequacy of the seclusion policy, but rather, that the terms of the policy had not been followed appropriately.
14 I also granted leave to the defendant to file a Further Defence to the Amended Statement of Claim. By such Defence, the defendant denies it has any liability to indemnify the plaintiff and, furthermore, if so liable, the injuries suffered by the worker were caused and/or contributed to by:
(a) an assault by Groves on the worker and/or the negligence of Groves;
(b) by the negligence of the employer; and
(c) by her own negligence.
15 The defendant does admit that it owed the worker a duty to exercise “the degree of care to be expected of a reasonable approved mental health service to avoid exposing … [the worker] … to a reasonably foreseeable risk of injury whilst also providing care and treatment to the patient in accordance with the statutory obligation as referred to in paragraphs (c)(i) and (ii) hereof”.
16 The reference to “the statutory obligation” is made clear by paragraph 11(c) of the Defence, which states:
“(c)Pursuant to s4(2) of the Mental Health Act 1986, the defendant, in providing treatment to the patient was statutorily required to:
(i)provide the patient with the best possible care and treatment appropriate to her needs in the least possible restrictive environment and in the least possible intrusive manner consistent with the effective giving of that care and treatment;
(ii)ensure that any restriction upon the liberty of the patient and any interference with her rights, privacy, dignity and self respect were kept to the minimum necessary in the circumstances.”
17 Furthermore, the defendant makes the following admissions in its Defence:
(a) That on 5 June 2004, Park determined that it was appropriate to place Groves in seclusion in a room used for that purpose;
(b) That on 5 March 2004, Groves was placed in the seclusion room at the premises;
(c) That on 5 February 2004, Groves was escorted to the seclusion room by six members of the nursing staff, together with the worker who was carrying out psychiatric specialling duties;
(d) That on 5 February 2004, Groves was surrounded by a number of the nurses who had escorted her into the seclusion room and one of the nursing staff who had escorted her into the seclusion room manned the door which provided access to, into and out of the seclusion room.
18 The defendant also asserts that:
(a) it denies that on 5 June 2004, Park requested or directed the worker to walk up to Groves “front-on” or to tell her that her behaviour was unacceptable;
(b) Park directed that he was the person to communicate with Groves in relation to the process of seclusion and that communication with Groves as to why she was in seclusion was not any part of the function of the worker.
19 The plaintiff called the worker and Professor Keks, who were both cross-examined.
The evidence of the worker
20 The plaintiff called the worker, who gave evidence that she was born in April 1952 and was currently employed as a rehabilitation supervisor. After attending secondary school at the Matthew Flinders Girls’ School in Geelong, she thereafter commenced an economics and politics course at Monash University. She did not complete this course and thereafter pursued a three-year training course, qualifying her as a Division III Psychiatric Nurse.
21 After qualifying, the worker was employed performing psychiatric nursing, after which she was engaged by various nursing agencies, one of which was the employer, where she commenced in 2004. Since graduation, she has always worked as a psychiatric nurse, interspersed with some period of time overseas. Sometimes, her work as a psychiatric nurse involved her being a “charge nurse” which she accepted as a description of someone who is in charge of the unit for the time they are on duty.[10] In particular, the following evidence was given:
[10]T38, L19-20
Q:“For about how long would you have acted as a charge nurse?---
A:In several areas, in several situations, in several jobs. A few years at least.
Q:In any of those jobs, were you familiar with any protocols about handling patients and taking them into seclusion?---
A:Yes, I was.”[11]
[11]T38, L22-27
22 At those times, she was employed as a charge nurse with the Health Commission of Victoria. She would give some training to other nurses who are less experienced in the psychiatric care of patients.
23 The worker was cross-examined in some detail about her experience as a psychiatric nurse prior to the incident, and the following evidence was given:
Q:“Whether you acted as charge nurse or whether you acted as simply a nurse on the psychiatric ward, you would be involved over your long career as a psychiatric nurse in dealing with a variety of individuals who may be severely affected by the psychiatric condition for which they’d been admitted to the ward?--
A:Yes I would.
Q:And there’d be a variation on a theme, there’d be some who were severely affected, some not so severely affected. Would that be so?---
A:That’s true.
Q:And there would be a broad range of problems that would be affecting the patients who you would be involved in treating from time to time as a nurse?---
A:That’s true.
Q:And some patients might be psychotic?---
A:True.
Q:Some patients simply badly affected by depression?---
A:True.
Q:Some patients badly affected by anxiety?---
A:Exactly, yes.
Q:So, as at 5 June 2004 the date of the accident you were a very highly experienced psychiatric nurse in relation to treating psychiatrically-affected patients who could be severely affected by particular psychiatric conditions?---
A:Yes.
Q:Given the period of time over which you’d engaged in work as a psychiatric nurse, you no doubt were aware of the provisions of the Mental Health Act which governed the way in which psychiatric care was to be given to patients admitted to institutions such as the Sunshine Psychiatric Unit?---
A:Yes.
Q:And as you understand it, the directions of that Act involved a couple of (indistinct) provisions, the first of which was that the psychiatric care to be given to a patient was to be the best possible care and treatment appropriate in the circumstances?---
A:Yes.
Q:And that the patient was to be cared for in the least possible restrictive environment, appropriate for the patient’s needs?---
A:Correct.
Q:And that to the extent that there was a need to intrude in relation to the patient, in relation to the provision of psychiatric care the least possible intrusive manner consistent with the giving of appropriate care and treatment was to be adopted?---
A:Correct.
Q:Finally, a couple of further matters. If one was going to provide some form of psychiatric care which involved restricting the liberty of a particular patient, the interference was to be kept to the minimum necessary in the circumstances?---
A:Correct.”[12]
[12]T56, L13 – T57, L10
24 The worker, through the employer, had been sent to the premises “two or three times” prior to 5 June 2004 but had not worked at the premises on a regular basis. She believed that she last worked at the premises about a week before 5 June 2004.
25 She described the premises as a “closed unit” which dealt with people who were being assessed for their psychiatric problems and this entailed “close observation”. The worker did not recall ever receiving a copy of the seclusion policy when working at the premises.
26 On 5 June 2004, she believed she was working the afternoon shift and would have commenced work at approximately 1.00 or 1.30pm and normally working through to about 10.00pm. On that day, her duties involved her being the “observer in the unit” (the low-dependency unit) which consisted of a dining area, individual rooms where patients slept and what she referred to as “communal areas”. Such areas consisted of where people could watch television, another area which was a “quieter area” and a certain outside area where patients could go outside to have a smoke.
27 The worker gave evidence that she does not recall having any “specific instructions” on that day, and during the course of her work, Groves came to her attention because she was disruptive. In particular, she was creating problems with other patients and causing them to become excited, and angry and disturbed. Such behaviour extended over a period of time, causing her to approach the charge nurse, Park, and informing him of her observations.
28 In particular, the worker gave the following evidence after she informed Park of her observations:
Q:“Once you had explained what you’d observed to him, did he say or do anything to you? Give you any directions or give you any advice as to what his intentions were?---
A:The - the intentions were, we were advised - well, he - we would - we went - we went out and approached the patient and as far as I can recall, and - and I - and because she was not responding appropriately he decided that we would put her into seclusion.
Q:So, first stage was you and he went and spoke to the patient was it?---
A:Yes I think so, I can’t quite recall exactly how it happened. It’s all a blur, a bit of a blur.
Q:Was anything said to you about putting that patient into seclusion?---
A:Yes, yes.
Q:What was the plan as conveyed to you?---
A:Well the plan - well, you would have to get approval, you have to fill in seclusion forms and there have to [be] plans on how you’re going to tackle the situation and how you’re going to, you know approach the - the seclusion.
Q:Was anything said to you about you being involved in placing this patient into seclusion?----
A:No, I was just told to be there, just to be next to her as you walked – walked her into seclusion.
Q:Were any other psychiatric nurses brought into the vicinity?---
A:Yes there were others brought into the vicinity, yes.
Q:How many all together?---
A:I think about----?---
Q:Do you remember?----
A:I think about four.
Q:Did you hear any of them getting instructions from Mr Park as to what to do?---
A:I didn’t, no.
Q:When moves were commenced to place the patient into seclusion was she in the lounge area or the common area?---
A:She was in the common area as far as I can remember.
Q:Where was the seclusion area in relation to the common area?---
A:The seclusion area was down a hallway … away from the main area, that’s why it’s the seclusion areas.
Q:Was that seclusion area arrived at along a passageway?---
A:Yes.
Q:About how wide was the passageway?---
A:Comfortably have three people in line (indicating), comfortably three.
Q:Are you able to make an estimate as to how long the passageway was from the common area to the seclusion room entrance?---
A:Approximately 40 metres I think, something like that. Give or take - give or take a bit.”[13]
[13]T42, L11 – T43, L22
29 The worker was then requested to describe the process undertaken when Groves was taken from the common area to the seclusion room which she accepted was basically a square room of about three metres by three metres entered by one door and containing padded walls and a mattress on the floor. The worker gave the following evidence:
Q:“In the common area did you and Mr Parks (sic) and the other four nurses approach this patient?---
A:Yes l assume - yes, yes, I’m sure they did it - we did it together, yes.
Q:Did anybody speak to her about the process of going into seclusion?---
A:It would have been the charge nurse.
Q:Do you remember him speaking to her?---
A:Yes. I remember him – yes he did speak to her.
Q:Did you speak to her?---
A:I mentioned something but I can’t recall what I said.
Q:That in the lounge room you---?---
A:Yes I would.
Q:---mentioned something to her?---
A:Yes.
Q:When she walked down the passageway to the seclusion room, where were you in relation to her?---
A:I was on her left side.
Q:Where was Mr Parks (sic) in relation to her?---
A:On her right side.
Q:And where were the other four in relation to her?---
A:Behind us.
Q:As she walked down that passageway did anybody speak to her?---
A:The charge nurse would have spoken to her and I did say something too which - yes.
Q:Had you been instructed not to speak to her if the charge nurse was or when the charge nurse was there?---
A:I can’t recall that because if I had been I wouldn’t have.”[14]
[14]T44, L4-25
30 The worker described how Groves entered into the seclusion room and moved backwards towards where the bed was situated. At that time, she (the worker) and the charge nurse were next to each other and the other four nurses were around the room but not next to her. The worker drew a diagram identifying where everyone was situated in the seclusion room.[15]
[15]See Exhibit 2. The witness described the reference to “CN” to be the charge nurse (Park) and the reference to “me” to be the witness.
31 When queried by the Court as to whether such people were in the same position immediately prior to her suffering injury, the worker stated:
“Yes, yes, yes. Somewhere around here - somewhere around that area. … .”[16]
[16]T45, L28-29
32 When queried as to what occurred in the seclusion room, the worker gave the following evidence:
Q:“So as you enter the room were you still in a position where you were on one side of the patient and the charge nurse, was on the other side?---
A:Yes.
Q:Then what happened after you’d entered the room? What was said and what?---
A:Well we - we positioned ourselves where I showed you, the charge nurse, and I. The patient went back, then was asked to - then I - I was asked to see if she had a bra on for safety reasons and?---
Q:When you say ‘safety reasons’, the bra is potentially dangerous to a patient wanting to injury (sic) themselves is it?---
A:Yes it is.
Q:What were you asked?---
A:To actually go and check to see if she had a bra on.
Q:Who asked you to do that?---
A:The charge nurse.
Q:Were you given any directions as to how you should undertake that investigation?---
A:No. Just to check and I – which I did.
Q:What did you do to check?---
A:I went forward, she had a blouse on, checked if she had a bra on and - - -
Q:And by checking if she had a bra on did that involve?---
A:Pulling it out.
Q:---taking hold of the top of her blouse?---
A:To see if she had a bra on.
Q:---pulling it away from her chest and looking?---
A:Yes it did.
Q:Looking at her chest?---
A:Yes, it did.
Q:Having done that, what happened next?----
A:I stepped back next to the charge nurse.”
HIS HONOUR:
Q:“To the position in which you’ve detailed in the diagram?---
A:Yes.
Q:Yes.
A:So I went back to that position and - and the patient came forward and broke my arm.
Q:In that process, in the room, had you spoken to the patient?---
A:I only - I explained to her, why we needed to do that and that was all. Just the fact that for safety reasons we needed to check for her bra, if she had a bra on, for her safety reasons.
Q:Did you make that communication with her on instructions from anyone?---
A:No, I didn’t.
Q:Having checked her bra, did you get any instructions to say anything about seclusion?---
A:No.
Q:As you recall it, did you say anything about seclusion after you checked her bra?---
A:I may have but I can’t tell you exactly what I had said anymore. It’s too long ago.
Q:What sort of time passed? How would you describe the time that, passed between you checking the patient for wearing a bra and your arm being injured?----
A:I’d say within seconds because it was just totally out of - it was very quick. It was totally unexpected and we were still in the position of standing next to each other. That means we hadn’t even moved, you know, had time to move or step back to get out - to go out of the room, to leave her in seclusion. So we hadn’t even moved from that position so it was very, very quick.
Q:How did the injury to your arm happen?---
A:She clasped both hands around the lower arm and snapped it.”[17]
[17]T47, L7 – T48, L31
33 When queried by Senior Counsel for the plaintiff as to whether her injury could have been prevented if people had been on either side of Groves in a position to restrain her, the worker stated:
A:“Well, the possibility would have been far less that that would have happened.
Q:In your experience as a nurse, is the going into the patient’s personal space, as you did to check her bra, likely to be provocative of trouble?---
A:Yes, it certainly is. Yes. It’s definitely provocative of trouble.
Q:Were there any other methods of checking for the bra that you could have undertaken which would not have been provocative?---
A:No, I don’t think so. I think anything - if you’re dealing with people’s space like that, you - it’s provocative in any way.
Q:In the room, did the charge nurse instruct any of the other attendant nurses to move into a position beside the patient, where they could restrain her?----
A:No, no.”[18]
[18]T49, L6-19
34 When queried by the Court, the worker gave evidence that it was the charge nurse who asked to do the checking for the bra. The period of time from when the process started of seclusion until she suffered her injury was about ten to fifteen minutes and the worker had “no idea” if the other staff were informed or not informed where to stand in the secure room.
35 Under cross-examination, the worker accepted that she well understood the various provisions of the Mental Health Act in relation to the rights and dignity of any particular patient and did not need any supervision in relation to that aspect of her nursing. However, in response to a question from Senior Counsel for the defendant, she did assert that she did “need supervision because I was in a foreign unit, a foreign environment, it wasn’t a familiar environment”.
36 The worker accepted, consistent with her knowledge of the provisions of the Mental Health Act and general psychiatric nursing experience, the preferred seclusion policy is one that is the least invasive to that person and the least likely to adversely impact on their privacy.
37 The worker also accepted that prior to 5 June 2004, she had experience in secluding patients and indeed, when employed in a direct capacity as a charge nurse, she had made decisions to seclude a patient.
38 The worker accepted that the premises consisted of a low-dependency unit and a high-dependency unit connected by a locked door, and a nursing area was in a glassed-off area common to both units and that the lounge area in which Groves was initially situated was in the low-dependency unit.
39 The worker rejected the suggestion that on 5 June 2004, she was carrying out psychiatric “specialling” duties in respect of Groves prior to the seclusion process. Although the worker denied that she was playing such a role on the day, she accepted that if a nurse is carrying out psychiatric specialling duty, it is appropriate that that nurse accompanies a patient to a seclusion room. In particular, the following evidence was given:
Q:“Is it the position that, in your experience, the psychiatric specialising (sic) nurse is a spare pair of hands for the seclusion team to assist in whatever way is possible or necessary in assisting in secluding the patient?---
A:Correct.
Q:Now I suggest to you that on 5 June 2004, that was your role, that you were the specialising (sic) nurse assisting the other nurses in the seclusion of the patient?---
A:Yes, I was next to her. Yes, I was.
Q:But the question says more than that, the question puts to you that your function in the course of the seclusion of the patient was to be a psychiatric specialising (sic) nurse assisting the other nurses in the seclusion of the patient?---
A:Yes.”
HIS HONOUR:
Q:“Just on that I’m a little bit unclear, you were asked earlier as I understand it, as to whether you were specialising (sic) in relation to this patient prior to the seclusion events occurring?---
A:Well, no, I was observing her but I wasn’t just observing her, but I noted that she was causing problems but when it came to the time to escort her I was specialling her, I was the one who was asked to - to - because I was the one who made the complaint too.”[19]
[19]T68, L2-24
40 When suggested to the worker that Park would give evidence that there was a meeting of nurses immediately prior to the seclusion process, including the worker, and that such meeting took place in the nurses’ station behind the glass panelled area, the worker stated:
“Maybe. Maybe. But I have no recollection of being involved.”[20]
[20]T69, L3-4
41 She also accepted that it was “quite possible” that at the meeting in the nurses’ station, various duties were allocated to the nurses who were to be involved in the seclusion of Groves. Again, the worker considered it was “quite possible, yes” that there was a specific allocation to individual nurses as to who was to take the left arm and who was to take the right arm, the left leg and the right leg in the event that restraint was necessary.
42 The worker also accepted it was possible that Park, in company with the other nurses, did inform Groves in the lounge that he wanted her to come with himself and the others. The worker clearly accepted that it was Park who was the first person to speak to Groves about the process to be undertaken. The worker considered that Park was to be the designated person to do any talking to Groves during the seclusion process. In particular, although accepting that the charge nurse, Park, was the designated person, it does not necessarily mean that another nurse cannot actually talk to any particular patient.
43 The worker recalled that Park spoke to Groves and she was told by Park that he wanted her to accompany him and the other nurses out of the lounge area. And furthermore, the worker accepted that it is a matter of circumstances as to precisely when you tell any particular patient that they are being transferred to a seclusion room. She also accepted that, bearing in mind issues as to confidentiality and privacy, it is sometimes best to discuss various issues in the quietness and the confined area of the seclusion room.
44 The worker also accepted that after being informed by Park that she was required to accompany him and the other nurses, Groves was compliant and there was no need to restrain her in any way. In particular, the walk from the lounge area to the seclusion room did not give rise in any way to any of the nurses being required to physically restrain Groves. When in the actual seclusion room, again, the worker accepted that nothing had been said by Groves which demonstrated any problem that might be anticipated.
45 When in the seclusion room, the following evidence was given in cross-examination:
Q:“I suggest to you that when you got in to the seclusion room, it was at that point in time that you received a direction from Nurse Parks (sic) to actually physically undertake a particular task in relation to the seclusion of the patient?---
A:Yes.
Q:Prior to that point in time you had not been given any particular task to perform with respect to the patient, had you?---
A:No.”
HIS HONOUR:
Q:“Even in relation to where you would walk in the vicinity of the patient?---
A:I see. I was just ---
Q:I am asking you that, was there any direction where you would walk?---
A:Yes, I had to walk beside her. We had to be a person on each side to escort her into---.”
MR NOONAN:
Q:“There is a difference of opinion about that. It was no part of your task to be responsible for restraining, if need be, the patient’s left arm or right arm?---
A:I wasn’t asked to restrain her.
Q:You weren’t asked. You were in fact asked to be a spare pair of hands effectively to assist where necessary in relation to the process of seclusion, do you agree?---
A:M’mm.”
HIS HONOUR:
Q:“So is the answer to that yes, is it?---
A:Yes, sorry.”
MR NOONAN:
Q:“I suggest to you that you were not specifically told to walk next to the patient?---
A:I disagree with you.
Q:All right. There is a difference of opinion about that. I suggest to you the first time that you got a specific direction to do anything in respect to the patient was at the time at which you were requested to inspect the patient’s bra?---
A:I’m sorry but I completely disagree with that.
Q:You do admit you got that direction though, didn’t you, from Nurse Parks (sic)?---
A:I certainly did.
Q:To actually undertake the inspection of the bra?---
A:M’mm.
Q:We part company on the issue as to whether you were required to do something before that?---
A:Yes, I was.
Q:All right, I understand.”
HIS HONOUR:
Q:“What was that, do you say?---
A:I was asked to be there with her as we were going in to take her into seclusion.
Q:‘There’ being on the side of her?---
A:Side of her, yes. I mean, if - if he didn’t want me to be there he would have told me not to be there because I would have been pushing - being pushy. I mean, you don’t - you don’t do your own rules when---.”
MR NOONAN:
Q:“You would accept this proposition though, wouldn’t you, having regard to your past experience in dealing with the seclusion of patients. If you were a charge nurse - this is hypothetical so I’m taking you away from 5 June - but you were a charge nurse and were directing the seclusion of a patient, one of the things you would be doing would be to assign a particular nurse to, for argument’s sake, the patient’s right arm or left arm. That is one of the things you would do, isn’t it?---
A:M’mm.
Q:I am sorry, a nod doesn’t---.
A:Yes, yes, sorry.
Q:If that was so, if for argument’s sake you had designated say Mr Gorton to be the nurse to be responsible for the patient’s left arm, one of the things that would occur in that circumstance would be that Mr Gorton accompanying the patient to seclusion would walk by the patient’s left arm because that was his designated duty. That is what ordinarily would occur, isn’t it?---
A:Yes, I would assume, yes.
Q:You would accept that in the course of discussions with Nurse Parks (sic) before the seclusion of the patient, you did not receive a designated responsibility to look after the patient’s left arm, did you?---
A:I don’t remember that at all.”[21]
[21]T77, L19 – T 79, L20
46 The worker accepted that she was directed by Park to inspect the bra of Groves and that because of her many years of experience, she did not need to be told how to do it. The worker also gave evidence that when she went to inspect Groves for the presence of a bra, she would have said to Groves that she was going to look down her front just to check her. When queried whether it would have been far less intrusive to check for the presence of a bra by placing her hand on the patient’s back, rather than looking down the front of her blouse, the worker disagreed. The worker considered that such an action could be just as intrusive and as offensive and that as far as she was concerned, she could quickly look down the blouse which would be the least intrusive.
47 The worker confirmed that after inspecting for the presence of the bra, she stepped backwards and after being queried as to what she said, if anything, to Groves after that, the worker stated:
“I think I just said something like, we need - we needed to do this because of your own safety or something - there is something - I can’t really quite remember what I said but I did - I must have said something when I approached her and stood back again just to re-assure her. I would have said something re-assuring.”[22]
[22]T82, L23-29
48 The worker answered “Maybe, I have no idea” when it was put to her that after she had checked for the bra and resumed her position, she advised Groves that her behaviour within the unit was unacceptable. The worker did not accept, when it was suggested to her that such a comment would be suggestive of casting blame or culpability on the patient. The plaintiff was shown a statement made by her on 7 September 2004 which she accepted was in her handwriting and signed on that date. Such statement was tendered in evidence.[23]
[23]See Exhibit A
49 The worker accepted that her memory at the time of making such statement was better than it is now. Part of such statement reads:
“I then went and spoke to Malcolm Parks (sic) the charge nurse that night and I told him Bernadette was mentally traumatising other patients by continually making comments about the incompetent staff. Malcolm said he would go and put her in the single room. The single room is a room that isolates people from other patients, they are given medication to calm them down. The persons going to the isolation room are stripped and left with basic clothing for safety reasons. Malcolm then contacted other staff, Rod Grant, Kate Chevalier, Grant Rule, Leo Ramien and James Shanahan, and we all went to the lounge area. Malcolm spoke to Bernadette asking her to leave the lounge area. At first she was uncooperative but when she saw all the other staff she got up and we all worked to the isolation unit about 40 metres down the passageway. When we got there I was asked to check if she had a bra on. The other staff surrounded her and I walked up to her front on. I pulled her shirt out at the front and looked down to see if she was wearing a bra, she wasn’t, and then I let go and stepped back, I then told her that her behaviour was unacceptable within the unit. As I was talking to her she grabbed my right wrist with both her hands and twisted it to the point that I heard a crack, I didn’t feel any pain at that time but I remember saying to Rod Grant ‘I think she’s broken my arm’. This other staff member grabbed Bernadette and she let go of my arm. … .”
50 It was put to the worker that the statement makes no reference to her receiving any formal direction from Park to walk next to the patient when travelling to the seclusion room, to which the worker replied she may have “omitted it, that’s all I can say”.
51 It was also put to the worker that the statement makes no reference to the worker telling Groves that she intended to pull the blouse out to inspect her for the presence of the bra, to which the worker responded:
“I can’t recall but I – I – I would have – I would have assumed that I would have explained to her which was the normal procedure”.[24]
[24]T88, L8-21
52 Although the worker accepted that bearing in mind the statement, she probably did tell Groves that her behaviour was “unacceptable”, she did not consider that that was an inappropriate thing to say in the circumstances. Also, when it was suggested to the worker that the person closest to Groves immediately before the worker being struck was another nurse, the worker answered “Maybe”.[25] In particular, the following was put to the worker:
Q:“Now Nurse Parks (sic) will say that immediately before the occurrence of this incident, he was directly in front of the patient and there were nurses off diagonally to each side of the patient and the position which you occupied was not immediately to the left of the patient, but rather was a nurse away, on the left-hand side of the patient. Now do you accept that that may have been the position that you occupied at the time?---
A:No.”[26]
[25]T90, L29
[26]T91, L5-12
53 At the end of her cross-examination, the Court queried the worker as to what she meant in her statement when she was asked to check whether Groves had a bra on, the other staff surrounded her, the worker stated:
Q:“… Well all around the - around the room. Is it the same or different to that original drawing you did this morning?---
A:As far as I know it was that, I can’t.
Q:It was that, that’s what I’m asking, I’m not sure?---
A:It’s all - I can’t remember it any other way.
Q:I just wanted to clarify in my mind?---
A:I know it’s completely different from that so I don’t know.
Q:That is what you mean when you use the words ‘surround’, you’re referring to what you’ve described in that document?---
A:As surround, yes.”[27]
[27]T92, L16-27
54 Under re-examination, the worker stated that in the circumstances of the matter, the appropriate time to tell Groves that she was being placed in seclusion was “immediately”.
55 When questioned about whether she was “specialling” Groves prior to her being moved to the seclusion room, the worker gave evidence that she had not been directed just to observe Groves but to generally observe the others in the area but to take note of Groves’ behaviour and, in particular, how she was affecting others. In particular, the worker gave evidence that she recalled that prior to that date, Groves had been known to “stir the – the unit up” and as she was a nurse (that is Groves), she knew what to say and what not to say to the various other patients. When queried about her evidence in cross-examination that she was “specialling” Groves when being transferred to the seclusion room, the worker gave evidence that she supposed that they were “all specialling her, anyone involved in the – in taking her into the isolation room which was part of the specialling team, I suppose”.[28]
[28]T95, L13-15
56 When queried as to why the worker was on the left-hand side of Groves when being transferred to the seclusion room, the worker gave the following evidence:
A:“… Why was I on the left-hand side? I’m assuming I was on her left-hand side because I was the one who actually was - you know, reported her and - and was the one who was more involved in getting her into the situation where he knew that she was going into seclusion and therefore - and being a female.
Q:It seemed from the cross-examination that it was being put to you that someone else was actually walking down on her left-hand side and you were a third or an independent person separated?---
A:I can’t recall that.
Q:Were you confident when you described the position you adopted when walking her down the passage you were on her ---?----
A:I was on her left-hand side. I remember being on the left-hand side of her.
Q:Was there anyone between you and her?--—
A:I can’t recall. I can’t recall anybody being down next to me, no. I don’t know why but I can’t.”[29]
[29]T95, L22 – T96, L7
57 Later, in her re-examination, the worker gave further evidence as to her position in the seclusion room:
Q: “In the seclusion room, you were on her left-hand side going there. When you got into the seclusion room you moved away from her left-hand side?---
A: Yes a bit, yes I did.
Q: You were asked to check her bra and I see, yes. At that time, according to the picture you’ve drawn, there was a mattress or a bed on the floor and she was standing near one corner of that bed?---
A: Well, in that vicinity, yes. I can’t tell you exactly if it was in the middle of the room or not, the bed, but it was in that vicinity there.
Q: And she was facing in broad terms towards the door?---
A: Door.
Q: So had anyone moved around to her left-hand side?---
A: No, I can’t remember anybody doing that. I just remember being there with the charge nurse next to me and the patient in front of me and being asked to check the bra, and I can’t recall anybody being next to her, right next to her.”
HIS HONOUR:
Q: “On her left-hand side?---
A: Yes.
Q: Or on both sides?
A: Yes, only — no, I can’t recall anybody being there. I know that much. That’s one of the few things I really am clear about.”[30]
[30]T96, L29 – T97, L16
58 Later, when she was further questioned as to her position in the room, the following evidence was given:
Q:“You had been on left-hand side?---
A:Yes.
Q:On your evidence?---
A:Yes, yes.
Q:What is the purpose of having somebody on the left side and somebody on the right side?--—
A:In case they make a sudden movement which is inappropriate movement, they can be retained.
Q:When you move away and are asked to check her bra, is there any policy about what should happen in relation to her left-hand side, any normal practice as to what should happen?---
A:But she was in front of me, right. You’re assuming - yes, there should have been somebody next to her.”[31]
[31]T98, L8-19
59 Further, in answer to the Court, the worker gave evidence that she was standing in front of Groves when she was struck, and from where she had been on the left-hand side, no one had taken her position.
60 The worker also gave evidence that although she knew there was something happening in the nurses’ office shortly prior to the seclusion process, she had “no idea about what – what it was about” as she was not part of it.
The evidence of Professor N Keks
61 Professor Nicholas Alexander Keks gave evidence on behalf of the plaintiff. He described himself as a specialist psychiatrist and produced a report that he authored dated 14 August 2012. Such report was tendered.[32] In particular, Professor Keks is Deputy Chairman of the Rehabilitation Psychiatry and Pain Clinical Institute at the Epworth Hospital, Adjunct Professor of Psychiatry at Monash University and Head of the Psychotropic Drug Information Service at the Mental Health Research Institute of Victoria. There was no issue that Professor Keks had expertise, amongst other matters, in the handling of psychiatric patients in public institutions.
[32]See Exhibit 3
62 Professor Keks, in general, described the various protocols to cover “the totality of the situation” which is to include the patient’s welfare, concern for the nurses and treating practitioners’ welfare. He also stressed that so much turns on the particular circumstances of each case.
63 When queried by Senior Counsel for the plaintiff what impact is physical contact by a nurse on the patient likely to have – and in particular, where a nurse pulled a blouse of the patient away from the chest to look at her chest – Professor Keks stated:
A:“It is utterly context and situation dependent. It - it could be helpful in a certain context with - with appropriate communication and circumstances. It could be highly aggravating, it could be none of the above if the patient is out of it or not very in touch with things. Totally context dependent.
Q:And if you have got somebody in seclusion for aggression already, in part for aggression, would that sort of action be something that would sound warning bells to a clinician of the need to be careful of the reaction of the patient?---
A:In - in – in a general sense if someone has displayed behaviour, you certainly factor that in.”[33]
[33]T115, L9-20
64 Under cross-examination, Professor Keks gave the following evidence when queried about certain aspects of the seclusion policy:
A:“… The third point is this. ‘Inform the person being secluded of the decision, why it has been made, how they will be observed, managed and reviewed. This is best done by one staff member speaking in a quiet reassuring manner explaining what is happening to the consumer throughout the process, re-assure them they will be safe, interpret as appropriate.’
Q:The issue as to when a patient should be told that they’re being secluded, why it’s being done, how they’ll be observed and managed and revealed [skil reviewed] is again dependent on the clinical circumstances of the patient, is it not?---
A:Absolutely so. There would be a lot of circumstances where that’s very theoretical.
Q:But in circumstances in which there is a concern about a patient’s behaviour reported to the charge nurse and if the patients in what is referred to as a low dependency area which is a lounge area with other patients around, at that point in time, it’s not really appropriate to go into detail which might result in there being some discussion about the patient’s condition and involve the revolution of matters which are really important to preserve from the patient’s confidentiality point of view?---
A:Are you saying, does it have to be done beforehand and so on?
Q:Yes.
A:Yes?---Well it again depends on the situation. But what – what you say is reasonable.”
HIS HONOUR:
Q:“So factors like confidentiality and things like that, given that the other - the room has other patients, those types of things go into consideration?---
A:Yes. Yes, Your Honour, there are some things you wouldn’t want to do that way, it’d be demeaning and embarrassing.”
MR NOONAN:
Q:“So if in the circumstances, the Charge nurse together with a number of other patients who are part of the process attended the low dependency area and asked the patient to come with them to go to seclusion, that might be sufficient in the circumstances before one then addressed other issues which might involve divulging issues regarding the patient’s condition and the need for treatment and the like?---
A:Well that can be appropriate yes.
Q:And again, if the patient is, we have heard she was initially uncooperative but then she decided to comply with the directions and there was no suggestion of any verbal aggression, no suggestion of any physical action on the part of the patient which suggested she was not going to be cooperative. In that circumstance it would be sufficient if the group of nurses together with the patient then precluded [skil preceded] from the low dependency unit to he seclusion area?---
A:Totally reasonable. Probably quite desirable, depending again on the circumstances.
Q:If the patient - in this instance we will hear she was moved from the low dependency unit, through a doorway, through a high dependency unit which gave access via another doorway to a passageway which led to the seclusion room, if throughout that process there was no verbal aggression, no sign of any physical violence or tendency to lash out, when the patient gets to the seclusion roam, having demonstrated those matters, it’s not then in that circumstance a matter where one would be directing that the patient be physically restrained by members of the nursing staff at that time?---
A:Absolutely.”[34]
[34]T121, L22 – T123, L18
65 Other than the evidence of the worker and Professor Keks, the plaintiff relied on various documents which were tendered. In particular, I refer to the following:
(a) The plaintiff’s Interrogatories numbered 1, 3, 7, 8, 12, 23 and the Answers thereto;[35]
[35]See Exhibit 4
(b) Extract from Seclusion Register dated 4 June 2004;[36]
[36]See Exhibit 10 at page 137 of Court Book
(c) Approval of Authority for Use of Seclusion on Groves on 5 June 2004;[37]
[37]See Exhibit 9 at pages 135-6 of Court Book
(d) Document pertaining to “patient restraint” issued in February 2001;[38]
(e) Occupational Health and Safety document issued March 2002.[39]
[38]See Exhibit 6 at page 88 of Court Book
[39]See Exhibit 7 at pages 89-90 Court Book
66 The defendant called the various nurses who assisted in the seclusion process on 5 June 2004, save for Charles Rodney Grant, who apparently could not be located.
The evidence of Malcolm Kennedy Park
67 Malcolm Kennedy Park (“Park”) gave evidence on behalf of the defendant. He continues to be employed by the defendant and, in particular, he is a team leader in the Adult Mental Health Rehabilitation Unit (“AMHRU”) at the premises.
68 He described his academic and employment history as follows:
(a) In 1978, he obtained a Certificate of Nursing Aide, Division II Nurse, after completing a twelve-month course of study;
(b) From 1981 to 1984, he pursued further studies, resulting in him obtaining an RN-Division I qualification, after which he performed general nursing work;
(c) From 1985 to 1987, he performed post-graduate nursing training, resulting in him obtaining qualifications as a psychiatric nurse, during which time he was working at The Royal Park;
(d) From 1987 onwards, he worked as both a psychiatric nurse, and also as a general nurse;
(e) In 1996, he pursued further studies whereby he completed a “bridging” degree for nurses and obtained a qualification in psychiatric nursing at degree level;
(f) From 1996 to apparently 2002, he worked at the John Fawner Hospital performing general nursing duties;
(g) From 2002, he worked at the premises – initially at the Sunshine Adult Acute Psychiatric Unit until 2007 and thereafter at AMHRU, which is involved in adult psychiatric rehabilitation;
(h) When working at the Adult Acute Psychiatric Unit, he initially commenced as a Registered Nurse Level 2, but was promoted to Registered Nurse Level 3, which permitted him to work as a charge nurse or shift leader. He was “substantiated” as a charge nurse/shift leader in 2005, but prior to that date, he had worked as a charge nurse or shift leader on many occasions from 2003 to 2005.
69 He described the Adult Acute Psychiatric Unit as a locked ward at that time, consisting of a low-dependency unit and a high-dependency unit, separated by a locked door. In the high-dependency unit there were five “client” bedrooms, an open communal space with some couches, a table to eat and a servery for meals. There is a locked doorway leading from the high-dependency unit to a passageway which leads to two seclusion rooms. This first seclusion room is “possibly” three or four metres along the passageway and the second seclusion room, about three metres further along the passageway;
70 He described the seclusion rooms being about 3.5 metres square with one doorway and one separate window to allow observations of the patient in the seclusion room;
71 There was a nursing station centrally located which has glass windows that look on the left side at the high-dependency unit lounge area and on the right side looks at the low-dependency unit and, in particular, the lounge area of the low-dependency unit;
72 In relation to 5 June 2004, Park recalls he was the acting charge nurse on that afternoon, but could not recall who approached him with concerns about Groves, who was in the low-dependency unit. Further, he could not recall the decision about whether Groves would be placed in seclusion, but knows that it was made on that day. He did recall that Groves was placed into seclusion on 5 June 2004 and recalls that Groves generally had been aggressive and a danger to herself, other patients and staff. He recalls that a nurse had been employed in “specialling” Groves and, when prompted, accepted that the nurse was the worker. In particular, he gave the following evidence:
Q:“In any event, the patient was taken to seclusion on that day. Do you recall whether any member of the nursing staff had been actively engaged in carrying out psychiatric specialling of Ms Groves?---
A:Yes, I do.
Q:Do you recall who that nurse was?---
A:It was - well, I don’t - I know now because I’ve been told. If you had’ve asked me without going through this process, I probably wouldn’t remember the name. So it was Joksimovic.
Q:Do you recall what steps were taken prior to the actual seclusion of Ms Groves, amongst your memories of nursing staff?---
A:No, I don’t.
Q:In the circumstances in which you’ve acted at Sunshine Hospital as a charge nurse, whether acting or otherwise, is there a system or process which is always undertaken amongst nursing staff in the circumstances in which a patient is to be taken to seclusion?---
A:Yes.
Q:What is that system?---
A:That system is that we - the nurse in charge will assess the situation, make a decision about whether the client will be secluded, and then gather the nursing staff to discuss the plan.
Q:Where is that discussion held in accordance with the system or process you were speaking of?---
A:In the nurses’ station.”[40]
[40]T150, L19 – T151, L9
73 He described that a “specialling” nurse would normally be involved in the seclusion process, partly because she would have a good rapport with the patient and partly because of the gender of the patient (if relevant);
74 He had no memory of the meeting of nurses taking place. He did describe the process of what occurs at the meeting of nurses for the seclusion process:
Q:“I think you mentioned that - we were talking about a system in respect of a meeting between nurses prior to going to seclusion, taking a patient to seclusion. Is there a practice which is adopted in relation to the allocation of duties to members of nursing staff who are to be involved in the seclusion process?---
A:Yes.
Q:What is that practice?---
A:Well, depending on the situation. Every situation is different but ideally I would have – we would have enough staff available to allocate a staff member to each arm and a staff member to each leg, someone to do the speaking to the client, and to look after the head should it be necessary, and someone to go ahead and open doors and clear the way.
Q:Whose responsibility is it in the system to identify what number of nurses are relevantly required to take a patient to seclusion?---
A:The shift leader.
Q:On this particular day, you were the acting shift leader?---
A:Yes.”[41]
[41]T153, L7-24
75 Although Park asserted that he had no actual memory of the meeting with nurses taking place, the following evidence was given:
Q:“Have you ever taken, in your period of time at Sunshine, a patient to seclusion in circumstances where there had been no meeting between nurses with a view to planning what was happen in the seclusion process?---
A:No.”[42]
[42]T154, L30 – T155, L2
76 Park described that the reason for a nurse being allocated a particular leg or arm was to make clear that in the event that if the patient, during the process of seclusion, became aggressive or violent, the nurse would know which limb to control. In particular, Park stated that the normal case was that there would be no holding of the patient during the seclusion process and, in particular, stated:
“They would definitely not be holding it unless it was necessary because to actually lay your hands on the client could aggravate the situation. So if it’s not required, they would stand - the usual formation would be that the people allocated the arms would stand either side of the patient and walk through with them, at a distance of a few feet, not right next to them. And the people allocated the legs would be a little further out and further back.”[43]
[43]T155, L22-30
77 Park gave evidence that his preference was to allocate staff nurses when allocating duties during the seclusion process, because he knew that such nurses would have done appropriate management of clinical aggression training. When queried about the role of the worker, an agency nurse who was “specialling” Groves, Park, stated:
“The plan would always be to have as many staff available as possible and the rationale behind that is that the more staff you have, if a struggle does ensue, then it’s less likely that the client or staff will get injured because you’ve got more hands to control the patient. The other issue about having more staff is that when you get a client to seclusion, there may be some jobs that need to be done that arise in that situation and you could ask that person to do those things.”[44]
[44]T156, L28 – T157, L6
78 Park described that the nurse who would be nominated to communicate with the patient during the seclusion process is to explain the situation to the patient; to tell them what is going to happen; to reassure them that they will be checked on a regular basis. Park accepted that it was he who would take that role, and he does remember speaking to Groves. Park also confirmed that it is appropriate to have female staff members as part of the seclusion process when dealing with a female patient.
79 Although he had no recall, Park accepted that Groves most probably was taken from the low-dependency unit through to the high-dependency unit to the passageway, and ultimately to one of the seclusion rooms. When queried as to the appropriate point in time to embark upon the process of informing the patient about the process, Park stated:
A:“Given that it’s a public area and there will be patients, visiting relatives, I wouldn’t have that discussion with the client in the lounge room, I would ask the client to come through with us to the seclusion area and have a discussion in that area.
Q:Why, what’s the thought process behind that proposition?---
A:To maintain the client’s dignity and confidentiality.
Q:Now, do you have a recollection of the events which unfolded whilst taking Ms Groves from the low dependency unit to the seclusion area?---
A:No I don’t. Only a vague recollection of being in the seclusion room.”[45]
[45]T161, L12-23
80 When queried about his recollections within the seclusion room, Park stated that he remembers “standing in front of the patient talking” and the patient was about “three feet – a metre away”. After being requested to make a drawing of those in the seclusion room immediately prior to the incident, and in particular, identifying the position of Groves, his position, that of the worker, and the position of the other nurses, Park produced a drawing which was tendered into evidence.[46] Such drawing also depicted the position of the door of the seclusion room and where the mattress was situated in the seclusion room.
[46]See Exhibit C
81 When queried, Park confirmed that his diagram depicted the worker separated from Groves by another nurse.
82 When queried about what he was doing when standing approximately three feet or a metre from Groves, Park stated:
A:“… I was directing the process and speaking to the client.
Q:What sort of things were you discussing with the patient to the best of your recollection?---
A:I - I - I can’t remember what I was saying.
Q:Adopting your usual practice having taken a patient from the low dependency unit to seclusion, what matters would you ordinarily be discussing with the patient?---
A:It would be explained why we were taking the client into seclusion, that they would be safe, we will provide them with food which we would if required, toilet facilities, that we would be checking on them closely and that a doctor would be reviewing them, reassuring them about the process.
Q:If a female patient is taken to seclusion is it important to check the patient for the presence of any clothing which might be utilised by the patient to self-harm?—
A:Yes.
Q:And it has been indicate[d] by Nurse Joksimovic that she was directed to check the patient for the presence of a bra. Is the presence of a bra something which ordinarily would be checked for when a female patient was being placed in seclusion?---
A:Yes.
Q:If other members of nursing staff had been allocated left arm, right arm, right leg, left leg and the door, if Joksimovic was the nurse carrying out specialling duties, what is the likelihood of her being instructed to check the patient for a bra?—
A:That’s likely that I would do that, yes.
Q:Do you actually recall giving her that direction?---
A:No.”[47]
[47]T166, L19 – T167, L12
83 When queried about a nurse approaching a patient and putting the blouse of the patient out and then looking down the blouse at the patient’s chest to ascertain whether a bra was being worn, Park stated:
“I say it would be inappropriate.”[48]
[48]T168, L31 – T169, L1
84 Although he could not recall the worker examining Groves in that way, he did indicate that an “accepted process” would be to check at the back of the worker to see whether a bra strap was in existence.
85 Park did not accept that the worker was immediately proximate to Groves after he had spoken to her but rather, was where he described her in his diagram. He did not recall the worker speaking to Groves prior to the incident in the seclusion room, but on being informed that the worker allegedly said that the behaviour of Groves was “unacceptable” in the unit, Park stated:
“I think to say that at that stage to any client is inappropriate. We would be talking more in general about terms of safety for themselves and safety of other people. We’re not there to be having a conversation about blaming them.”[49]
Q:The assignment of nurses to limbs, can you be more specific in relation to that issue? Was it two nurses on one limb, one nurse per limb, how did it work?---
A:It’s usually one nurse per limb.
Q:Was there a nurse who was identified as the individual who would firstly lead the seclusion process?---
A:Sorry can you?
Q:Was there a nurse who, I think you mentioned the shift leader, was the person in charge of the seclusion process. Was there a nurse identified who would be the nurse who would verbally interact with the patient?---
A:Oh yes, yes.
Q:- - - who was to be the subject of seclusion?---
A:Yes there’s always someone.
Q:Who generally was that person?---
A:It depends - usually the shift leader would - would be that person but it again depends on who had the rapport with the patient.”[69]
[69]T247, L8-31
122 When queried as to whether there are discussions with any particular patient in the seclusion room as to why they are in the seclusion room, Rule stated:
“Yes look, I think it depends on their comprehension of the whole situation and again, you know you sort of judge at that point in time to what they are going to understand and what they aren’t going to understand.”[70]
[70]T249, L26-29
123 Rule gave evidence that he had a “vague recollection” of attending a meeting in relation to the seclusion of Groves.
124 Rule also gave evidence that leaving aside an emergency situation where action had to be taken immediately, it was normal to have a meeting of nurses before the seclusion process commenced.
125 Rule gave evidence that he did have a memory of “ushering the patient into the seclusion room” and that she walked in freely of her own volition. He could not recall any outward signs of verbal or physical aggression.
126 Rule gave evidence that again, he had a “vague recollection” of the patient being inspected for the presence of a bra. He described that the process he would undertake is to first ask a patient whether she had a bra and if there would be no response, he would generally see if he could see one and then “perhaps” touch the patient on the back to actually feel for a bra.
127 When queried as to whether or not he would pull the blouse of a patient out and look down the chest of the patient to check for a bra, he commented that he would be a “bit shocked” by that process.
128 Rule also confirmed that the seclusion room was “roughly” three metres by three metres with a bed located “usually in the middle of the room”. When queried, Rule also considered that it would be inappropriate to tell a patient in a seclusion room that her behaviour had been “unacceptable” as it is not a good line of communication.
129 Under cross-examination, Rule accepted that the “normal practice” is to explain to the patient at the time that the seclusion process commences, what is involved in the process. However, Rule did comment that that sometimes that cannot be done in “an emergency”.
130 Rule confirmed that the seclusion process involved nurses being alert for a sudden action from the patient.
The evidence of Leo Ramien
131 Leo Ramien (“Ramien”) gave evidence on behalf of the defendant and stated that he was a Registered Nurse working as a psychiatric nurse at the Adult Acute Psychiatric Unit at the premises.
132 He is presently a Registered Nurse, Division III, and a team leader.
133 He described his academic and employment history in the following way:
(a) He undertook his training as a psychiatric nurse by way of hospital training for three years at the Hobson Park Hospital in Traralgon and obtained a Certificate in Psychiatric Nursing in 1993;
(b) Between 1994 and 2000, he worked as a psychiatric nurse, initially at Maroondah Hospital, and later at The Royal Park Hospital;
(c) In 2001, he commenced at the Sunshine Adult Acute Psychiatric Unit, where he has remained.
134 He gave evidence that over the years at the Adult Acute Psychiatric Unit, he has been involved in seclusion on a “regular basis”. In 2004, he was aware there was a written policy at the unit in relation to seclusion and he was familiar with that policy. He gave evidence that he could remember being there in the seclusion room on 5 June 2004 but could “vaguely recall” the incident.
135 Although he recalls being called in to help, he does not remember what he was asked to do. He also recalls that there were at least four other nurses involved in the process.
136 He did recall that Groves “walked quietly” during the journey to the seclusion room[71] and that all nurses entered the seclusion room, but he could not recall where they were situated. In particular, Ramien recalled that “Malcolm” was in charge of the process and although he could not recall a meeting of nurses prior to the process, he accepted that is the usual procedure, save in circumstances where there is a “critical incident” and people have to act quickly.
[71]T269, L24-26
137 Ramien also gave evidence that an enquiry would be made as to whether a female patient was wearing a bra, and if so, to remove it. In the event that the patient denied wearing a bra, he suggested that the nurse would look for the strap or look at the back strap to see if that is the case.
Some comments about the evidence
138 I consider that all the witnesses who gave evidence in the proceeding were credible and were attempting to give honest and accurate answers to the questions posed to them. However, each witness made clear that they did not have a complete and clear recollection of the events surrounding, leading up to and culminating with the incident on 5 June 2004. Some witnesses had very little recall at all, whereas others had recall of specific events during the course of the seclusion of Groves.
139 Considering the effluxion of time between the incident and the hearing of this proceeding, and also bearing in mind the number of seclusions that many of the witnesses would have been involved in both before and after the incident, it is not surprising that there can be no specific recall of all events. Of course, a credible witness, although wishing to give honest and accurate answers, may be unreliable in their recall of particular events.
140 I am assisted in determining the facts by the existence of the Incident Report[72] which was authored by Park on the day of the incident, and the statement of the worker made on 7 September 2004,[73] some three months after the occurrence of the incident.
[72]See Exhibit 5
[73]See Exhibit A
141 I also note that each of the witnesses were aware that a seclusion policy existed at the time of the incident and indeed, were fully aware of the terms of such policy. Sometimes a witness would give evidence that although he or she may not have a precise recall of the events on the day of the incident, but resorted to saying what was the “normal” practice in the process of seclusion. Although clearly not direct evidence of what occurred on the day, I do find such evidence to be of some value in the same way as the following question and answer:
Q:“Did you shave on Monday morning twelve months ago?---
A:Although I do not recall that Monday morning, I do shave every morning and accordingly I did shave on that morning.”
142 Although I found the evidence of Professor Keks to be of some assistance – and of course there was no doubting his expertise – his report is best summed up when he states, in paragraph 10 of such report:
“I am unable to provide specific comments about the incident in the absence of more information.”
However, Professor Keks did respond to various propositions put by Counsel.
Findings of fact
143 I make the following findings of fact:
(a) The worker prior to the incident was a highly qualified psychiatric nurse who had had much experience in psychiatric nursing in a variety of institutions, which involved the seclusion of various patients. In particular, when employed as a charge nurse by the Health Commission of Victoria, she was a charge nurse which directed the processes of seclusion. In particular, I find that the worker had a clear understanding of the process of seclusion prior to the seclusion of Groves on 5 June 2004;
(b) On 5 June 2004, the worker was an agency nurse at the premises and was engaged to work the afternoon shift in the low-dependency unit at the Adult Acute Psychiatric Unit at the premises. In particular, I find that the worker was “specialling” Groves in such Unit. In this respect, I consider the Incident Report made by Park on the day of the incident, which refers to the worker “specialling” Groves, is a strong indicator that such was the case. Park was queried during the course of his evidence whether such a reference was to “specialling” in the process of seclusion or rather prior to that process in the low-dependency unit, to which he answered “In the ward”. Furthermore, and to a lesser extent, the statement of the worker refers to her “supervising one of the patients” which again would be consistent with the worker “specialling” Groves;
(c) Again, consistent with the Incident Report and the statement of the worker, six nursing staff assisted Groves to the seclusion room after she became “verbally aggressive and disruptive and removing the bandages to her wrists, attempting to make wounds bleed”. I find that the six “staff” nurses were Park, Shanahan, Chevalier, Rule, Ramien and probably the absent Charles Rodney Grant. Furthermore, Park makes reference in the Incident Report to what he refers to as the “agency nurse” who was the worker;
(d) The seclusion process involved Groves being transferred from the low-dependency unit through the high-dependency unit to a passageway and to one of the seclusion rooms off that passage. In particular, I do find, again consistent with the statement of the worker, that on her observing difficulties with Groves, the worker advised Park, the charge nurse on that shift, who in turn spoke to Groves in the low-dependency unit, asking her to leave the lounge area;
(e) I also find, again consistent with the statement of the worker, that although Groves was initially unco-operative, she got up and walked to the isolation unit when she observed all the other staff. Indeed, based on that statement, and other scanty recalls by some of the witnesses, I do find that the “journey” undertaken by Groves from the low-dependency unit to the seclusion room leading up to the incident was uneventful with no indications of verbal or physical violence;
(f) I also find, consistent with the tendered Seclusion Register, that Groves had been secluded on 3 June 2004 for a period of three hours and thirty minutes because of what was considered to be a risk of injury to herself and others;
(g) I also find that the layout of seclusion rooms were as described by Park, who had been in the particular seclusion room many times. In particular, he described the seclusion room as about three metres square with a mattress in the middle of the room (as depicted in his diagram), one doorway to the seclusion room and a separate window for observation. I also note that Rule also gave evidence that the mattress in the seclusion room was “usually in the middle of the room” consistent with the evidence of Park and inconsistent with the depiction by the worker in her diagram, which had the mattress in one corner of the seclusion room;
(h) In particular, I do find that Park, consistent with the seclusion policy, gathered staff nurses, previously identified, and the worker in the nursing station to advise them that a seclusion process was to be undertaken and allocated them specific tasks for such process. I have come to such view based on the following:
(i) Park said that was his normal practice and he could not recall varying in that practice unless, of course, there was a serious emergency which required urgent attention;
(ii) Furthermore, I find that Park involved “staff” nurses rather than agency nurses, such as the worker, in the process of seclusion. However, because the worker had been “specialling” Groves, it was appropriate that she be there during the process as an “extra pair of hands”;
(iii) Although Park had no direct memory of meeting with the nurses prior to the seclusion process, he gave evidence that is the practice he always undertakes and he prefers staff nurses who he knows and has an understanding of their particular training;
(iv) Shanahan has some recall that he was the nurse “on one of the doors”, which suggested to him that there was co-ordination of the seclusion process on the part of the shift leader;
(v) Both Shanahan and Chevalier were of the view that leaving aside emergency situations, every seclusion process was preceded by an allocation of nurses to particular positions during the seclusion process.
Further, the worker accepted that although she had no recollection of the nurses’ meeting in the nurses’ station, she accepted that it was “quite possible” that such a meeting occurred and various duties were allocated to the nurses who were to be involved in the seclusion of Groves, and in particular, that it was “quite possible, yes” that specific allocations involved nurses who were to observe the left arm, right arm et cetera. She also accepted that she may have been present at a meeting of those nurses involved in the seclusion of the patient, but had no recollection of that.
After considering all of the evidence, I have come to the view that it is probable that the worker was involved in a meeting with other nurses, at which time Park allocated various responsibilities to the staff nurses with the requirement that the worker attend during the seclusion process because she had been “specialling” Groves prior to that process;
(i) When Groves and the nurses, including the worker, were inside the seclusion room, I do find that Park requested the worker to ascertain whether Groves was wearing a bra. I also find that Park gave no particular instruction as to how that was to occur. I also find, consistent with the statement of the worker, that she walked up to Groves “front on”, pulled her blouse out at the front and looked down to see if she was wearing a bra, which she was not. In respect to that activity, I do find that it was an “inappropriate” way to check for a bra, and a far more appropriate way in the circumstances, was to place a hand either on the shoulder or the back of the patient to ascertain whether a bra strap could be felt;
(j) I also find, consistent with the statement of the worker, that after checking for the bra, she let go of the blouse and stepped back, at which time she told Groves that “her behaviour was unacceptable within the unit”;
(k) I also find that based on the evidence of several of the other nurses, and indeed, Professor Keks, such a comment in the seclusion room was inappropriate and not consistent with the principles surrounding seclusion;
(l) I also find that during the seclusion process, Park was to be the designated speaker to Groves and indeed, in the circumstances of this seclusion, Park considered that after requesting Groves to come from the low-dependency unit to the seclusion room, the best place to discuss the reasons why she was in seclusion was the seclusion room, given issues of dignity and confidentiality. In particular, I accept the evidence of Park that he remembers “standing in front of the patient talking” in the seclusion room prior to the incident.
Furthermore, although I accept that Park directed the worker (who, of course, was female and had been specialling Groves) to inspect for the bra, I do not accept that Park, who was the designated speaker, requested the worker to say anything to Groves about why she was in the seclusion room;
(m) I also find that the positioning of the nurses was as depicted by Park in his diagram[74] and do not accept that such positioning was as depicted by the worker in her diagram.[75] I have come to such view for the following reasons:
[74]See Exhibit C
[75]See Exhibit 2
(i) I have accepted that Park did allocate various staff nurses to various positions during the seclusion process and it was his preference to allocate staff nurses rather than an agency nurse such as the worker. In such circumstances, I consider it unlikely that the worker would be placed in a position, as she alleges, next to Groves, and furthermore, consider it unlikely that Park would have been positioned as alleged by the worker given that he was the designated speaker;
(ii) I have also found that the worker was effectively an “extra” because of her “relationship” with Groves, having been specialling her that afternoon;
(iii) I also accept that the depiction by Park is more likely to be correct, bearing in mind his positioning of the mattress compared to the positioning of the worker, which would appear to be inconsistent with where the mattress was usually placed;
(iv) Of course, the situation must also be viewed in circumstances in which Park was of the strong view that the normal process had been undertaken and where the worker fairly accepted that “maybe” another nurse was the closest to Groves rather than herself. Furthermore, the worker, when queried about the words used in her statement that the other staff “surrounded her”, stated in cross-examination that that meant they were all around the room, that she could not remember any other way;
(n) That the actual event causing the worker to suffer injury was “very very quick” (the worker), “was instantaneous” (Park), “occurred in a split second” (Park), occurred “quite quickly” (Chevalier) and was “totally unexpected” and undertaken with speed (Rule).
The case for the Plaintiff
144 It must be steadily borne in mind that the onus lies on the plaintiff for the plaintiff to establish a breach of duty which was a cause of the requisite damage suffered by the worker. Although the defendant accepts that it owed the worker a duty, it denies that such duty was breached and if breached, was not a cause of any injury suffered by the worker.
145 The defendant submits that it had a duty to the worker to exercise a degree of care which ought be expected of a reasonable mental health service to avoid exposing the worker to a reasonably foreseeable risk of injury.[76] However, the defendant submits that the content of the duty owed by the defendant to the worker is affected by the statutory obligations of the defendant under the Mental Health Act 1986. It was submitted that in determining the content of the duty owed by the defendant to the worker, statutory obligations of the defendant under the Mental Health Act 1986 are relevant.
[76]See Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at page 31 per Mason J
146 In particular, the defendant submits that the Court should have regard to what ought reasonably have been done in the circumstances confronted by the defendant in the steps undertaken prior to and in the course of the seclusion of Groves so as to avoid exposing the worker to a reasonably foreseeable risk of injury. In particular, the defendant highlights that it was required to comply with its statutory obligation to provide the best possible care and treatment to Groves, appropriate to her needs:
(a) In the least possible restrictive environment and least possible intrusive manner consistent with the effect of giving of that care and treatment; and
(b) Ensuring that any restriction on the liberty of Groves and any interference of her rights, privacy, dignity and self-respect were kept to a minimum necessary in the circumstances.[77]
[77]See s4(2)(a) and (b) Mental Health Act 1986
147 In oral submissions, Senior Counsel for the defendant accepted that the starting point in determining the content of the duty, the starting point is that the relationship between principal and contractor (the worker) is akin to that of employer and employee but subject to the various statutory requirements of the Mental Health Act.
148 In oral submissions, Senior Counsel for the plaintiff stated:
“The duty of care is the performance of the care is affected by the provisions of the Mental Health Act, and it is because of that Mental Health Act provisions that the protocol was devised as a safe way of handling patients so as to prevent - managing patients - so as to prevent injury to the patient, to other patients and to the nursing staff and the protocol wasn’t followed. … .”[78]
[78]T315, L21-27
149 I do consider that the content of the duty of care owed by the defendant to the worker is affected by the provisions of the Mental Health Act, and indeed, as submitted by Senior Counsel for the plaintiff, the seclusion policy most probably was devised so as to prevent injury to, amongst others, various nursing staff. A practical way to deal with the matter is to see whether or not the defendant has breached the seclusion policy and if so, whether it can be said that such a breach has been a cause of the undoubted injury suffered by the worker.
150 The case for the plaintiff is seemingly based on the following matters which it is submitted by those acting on behalf of the plaintiff, constituted a breach of the appropriate duty causing the injury suffered by the worker:
151 The plaintiff alleges:
(a) The defendant failed to instruct the worker in respect of the seclusion process.
I reject such assertion, as the worker was, at the time of the incident, a highly trained and very experienced psychiatric nurse who had had experience in seclusion processes and indeed, had been in charge of seclusion processes prior to that day. She was well aware of the nature of the process and the requirements when such process was undertaken. Also, consistent with my findings, the worker was involved when nurses were allocated various responsibilities during the seclusion process, although she, the worker, was to be an effective “extra” because of her earlier role of specialling Groves and reporting the matter to Park;
(b) The failure of Park to inform Groves of matters relevant to her seclusion in accordance with the seclusion policy.
This assertion must be rejected. Consistent with my findings, Park initially advised Groves to leave the low-dependency unit and follow him to the seclusion room, at which place he explained to her the reasons why she was being placed in the seclusion room. There is nothing in the seclusion policy as to say precisely when it should be explained to the patient and indeed, Professor Keks considered it reasonable that such be undertaken in the seclusion room, bearing in mind issues of confidentiality and privacy;
(c) The failure of the defendant, and in particular, Park, to advise members of the nursing staff involved in the seclusion process of their individual and collective responsibilities in accordance with the seclusion policy.
Again, given my findings of fact, such assertion must be rejected, as I do find that Park did have a meeting of the nurses (including the worker) and allocated various responsibilities to staff nurses during the seclusion process;
(d) The failure on the part of Park to have a member of the nursing staff to take up the position left by the worker when she attended Groves for the purposes of inspecting her for the presence of a bra.
This assertion should also be rejected, as I have found:
(i) that contrary to the suggestion of the worker, she was not next to Groves but rather, was in the position as depicted in the diagram by Park;
(ii) in any event, even on the version given by the worker, she had returned to that position by the time she was struck by Groves;
(e) The failure on the part of the defendant for the nursing staff to take up positions relatively close enough to Groves so that the ultimate striking by Groves could be prevented.
Again, consistent with my findings, I do find that Park allocated staff nurses to appropriate positions throughout the process. In particular, I do find that there was no need at any time prior to the striking of the worker by Groves for Groves to be physically restrained at any time. Indeed, the evidence would suggest that up to the time when the striking occurred, Groves had shown no signs of aggression, either verbally or physically, although she was initially unco-operative, but then went with Park and the other nurses to the seclusion room;
(f) The nursing staff failing to be sufficiently alert to prevent Groves striking the worker.
Although there is no doubt that Groves struck the worker, causing the spiral fracture, I find that the speed with which the assault occurred was consistent with the evidence of several witnesses, “incredibly quick” and did not provide nursing staff with an opportunity to take steps to prevent the event occurring. It must also be borne in mind that the very experienced staff nurses who were part of the seclusion process were particularly alert in circumstances where there had been a history of aggression in Groves (the previous seclusion) and in circumstances where a patient’s personal space is being invaded whilst in seclusion in the event that a bra is being checked.
152 In particular, I refer to the allegation by the plaintiff that the defendant was negligent in allowing Park to nominate the worker to request that she walk up to Groves front on, pull Groves’ blouse out and look to see whether she had a bra on and tell Groves that her behaviour was unacceptable within the Psychiatric Unit.
153 Consistent with my findings, I do find that Park did direct the worker to ascertain whether Groves was wearing a bra. Furthermore, I also find that he did not direct that the worker undertake such activity in any particular way. However, as I have also found, the worker was a particularly experienced nurse, had high qualifications, and indeed, had been the nurse specialling Groves earlier that day. In all the circumstances, I do not consider there was any fault on the part of Park to direct that the worker he directed to ascertain whether Groves was wearing a bra. Indeed, the worker being female and her relationship with the patient earlier in the day would suggest that perhaps she was the appropriate person to undertake such task.
154 Consistent with my findings, I found that at no time did Park direct the worker to say anything about the reason Groves was in seclusion and indeed, as I have found, Park, being the charge nurse in charge of the seclusion process, would have been the nominated speaker as he was initially with Groves in the low-dependency unit and later in the seclusion unit.
155 Of course, it is perhaps trite to note that just because the worker suffered injury in the seclusion room, it must follow that such injury was caused by some breach of duty by the defendant and or its servants or agents. As I have already found, I do not consider that the defendant did breach any duty causing the worker to suffer injury. For the sake of completeness, I should also add that even in the event that the defendant did breach any duty by not initially informing Groves that she was going to be transferred to the seclusion room and the reasons why she was going to be so moved, or did not have a proper or any meeting of the nurses prior to the seclusion process, or indeed, inappropriately allowed the worker to check for the bra, I would not be persuaded that any such breach is a cause of the injury suffered by the worker. In the circumstances of this matter, the actions were so quick, and unexpected, that it was unlikely that proper compliance with the seclusion process would have avoided the worker suffering injury. Indeed, on the facts so found by me, such has been the case that notwithstanding compliance with the seclusion policy, injury still did eventuate.
Conclusion
156 Accordingly, I have formed the view that the defendant has not breached any duty of care it owed to the worker and accordingly, the application must be dismissed.
157 I will hear the parties on the question of costs.
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