Victorian WorkCover Authority v Victorian Institute of Forensic Mental Health
[2015] VCC 1154
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA AT Melbourne common law division | Revised Not Restricted Suitable for Publication |
GENERAL list
Case No. CI-11-06229
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| VICTORIAN INSTITUTE OF FORENSIC MENTAL HEALTH (FORENSICARE) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13, 14, 15, 16, 19 and 20 May 2014 | |
DATE OF JUDGMENT: | 28 August 2015 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Victorian Institute of Forensic Mental Health | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1154 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Indemnity – negligence – causation
Legislation Cited: Accident Compensation Act 1985, s138; Wrongs Act 1958 (Vic) (as amended); Occupational Health and Safety (Manual Handling) Regulations 1999; Mental Health Act 1986 (Vic)
Cases Cited:TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Victorian WorkCover Authority v Jones Lang La Salle (Vic) Pty Ltd [2012] VSC 412; Vairy v Wyong Shire Council (2005) 223 CLR 422; Esso Australia Limited v Victorian WorkCover Authority (2001) 1 VR 246; McLean v Tedman (1984) 155 CLR 306
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Y Rattray QC with Mr T J Ryan | Russell Kennedy |
| For the Defendant | Mr J Noonan QC with Ms G Cooper | K & L Gates |
HIS HONOUR:
1 On 17 February 2001, Mr Paul Hollander (“the worker”) was performing duties as a Registered Psychiatric Nurse (“the duties”) on behalf of his employer, Psychiatric Care Consultants Pty Ltd (“the employer”).
2 The duties were carried out at a forensic mental health hospital situated at Yarra Bend Road, Fairfield in the State of Victoria (“the premises”) pursuant to an agreement between the employer and the defendant, as occupier, of the premises (“the agreement”).
3 On that day, the worker was injured when he was endeavouring to restrain a patient who had previously thrown a plastic water jug at another Nurse, Mr Paul Jeremy Walker (“Nurse Walker”) and in the course of the intervention with the patient, the worker fell down a flight of steps located on the premises (“the attempted restraint”).
4 The worker suffered injuries to his left and right knees and right elbow. He further developed Depression, Anxiety and Post-Traumatic Stress Disorder. These injuries prevented the worker from returning to work in his normal occupation, resulting in economic loss and pain and suffering (“the damage”).
5 Thereafter, on or about 21 February 2001, the worker made a Claim for Compensation for an injury under the provisions of the Accident Compensation Act 1985 (“the Act”) against his employer, a labour-hire firm.
6 The plaintiff accepted the worker’s claim and to date, amounts have been paid pursuant to the Act on account of the injuries totalling $532,276.18.
7 The plaintiff, the Victorian WorkCover Authority (“VWA”), seeks an indemnity pursuant to s138 of the Act in respect of the payments of compensation made in relation to the worker’s injuries. The indemnity is sought from the defendant known as “Forensicare”.
8 The VWA contends that the Forensicare was responsible for the system of work which led to the worker’s injuries and that its negligence and or breach of duty was a cause of the injuries.
9 The VWA alleges that the injuries for which compensation has been paid were caused under circumstances creating a liability in the defendant to pay damages pursuant to s138(1) and (3) of the Act, as follows:
“138 Indemnity by third party
(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)…
(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—
X is the extent, expressed as a percentage, whereby the third party's act, default or negligence caused or contributed to the injury or death;
A is 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;
B is 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);
C is 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.”
10 In summary, the essential allegations are:
· First, there is a breach of the defendant’s common law duty of care as a host employer of the worker by failing to provide him with a reasonably safe place of work and a safe system of work, in that the position of the defendant is analogous to that of an employer and it carries with it the responsibilities as if it were the employer.[1]
· Further, or alternatively, the defendant was in breach of its statutory duty as occupier pursuant to the Occupational Health and Safety (Manual Handling) Regulations 1999.
[1]See TNT Australia Pty Ltd v Christie & Ors (2003) 65 NSWLR 1
Background
11 In terms of the formula set out in s138(3) of the Act, “A” has been agreed and there is no “C” or “B”. “X” is the percentage, if any, to be calculated by the Court.
12 The defendant is the Victorian Institute of Forensic Mental Health which is commonly known as Forensicare. It conducted a high-security mental hospital known as the Thomas Embling Hospital, and the particular unit in which the injury took place was titled the Argyle Unit.
13 The Argyle Unit was opened in either 2000 or early 2001 and it was purpose designed to house so-called violent offenders with psychotic and or other mental illnesses.
14 The worker’s employer was a company by the name of Psychiatric Care Consultants which was a specialist firm supplying labour on hire to the defendant.
15 The worker had undertaken induction training both with the employer and with the defendant.
16 In the course of the worker’s duties at Forensicare, he was required to escort a patient, or a number of patients, each singularly, to a dispensary where medicine had been prescribed for each particular patient. The dispensary consisted of a cubicle whereby the dispensing nurse could view the patient through an opening to a secured door that separated the dispensing nurse from the patient. At approximately waist height, there was a ledge where the nurse would place the tablets in a paper cup and also a plastic jug of water from which the patient would either pour his own water, or if the dispensing nurse made a clinical judgment that it was not appropriate, he or she would pour the water for the patient.
17 On the day of the incident, being 17 February 2001, the worker had escorted a patient (Patient ‘X’) who is known to have psychotic outbursts and violent behaviour involving physical violence either to a person or property at least once a week.[2]
[2]Thomson – T166, L9 – 12
18 Patient ‘X’ was also known not to “get on with or not like” Nurse Walker, who was behind the door dispensing the medicine.
19 It was also said that the dispensing of medicine was regarded somewhat as a high risk area because it was known that patients could become agitated and aggressive in that setting.[3]
[3]Tozer – T362, L11
20 Patient ‘X’ was relevantly compliant during the escort to the window but thereafter, suddenly and without warning, he seized the jug and either punched Nurse Walker or threw the jug through the opening of the door.
21 Nurse Walker received a glancing blow and stumbled backwards inside the cubicle. The worker saw blood on his face.
22 The worker thereupon took Patient ‘X’ in a bear hug in order to restrain him further. Patient ‘X’ is described as some 15 to 16 stone, well-built and strong. In the course of the struggle that then ensued, the worker was forced backwards and down some steps to a sunken floor shown in photographs.[4]
[4]Exhibit 1
23 Apparently, Patient ‘X’ landed on top of the worker and at some stage, Mr Thompson, the Unit manager, arrived on the scene and was also involved in the struggle and he himself fell down the stairs and on top of both the worker and Patient ‘X’.
24 As a result of the attempted restraint, the worker was injured, suffering both physical injuries and a Post-Traumatic Stress Disorder for which he was still being treated at the time of hearing.
Witnesses
25 The plaintiff adduced evidence from the worker, Mr Ian Thompson, the assistant manager for the Argyle Unit, Mr Nikola Josevski, a forensic engineer and Mr Mark Hennessy, an applied scientist working full time as a consultant in public health and safety in private practice specialising in ergonomics.
26 The defendant adduced evidence from Mr Ian Tozer, the general manager of the Thomas Embling Hospital, Nurse Walker, Mr David McIvor, occupational health and safety consultant, and Professor John Basson, consultant psychiatrist specialising in forensic health in New South Wales.
The template
27 Counsel for the plaintiff submit that the scope of the duty of care owed by the defendant to the worker is “tempered” by the provisions of s4 of the Mental Health Act 1986 (Vic). They further submit:
“That Section uses a language that requires Forensicare to, inter alia, provide care and treatment … in the least possible restrictive environment and the least possible intrusive manner consistent with the effective caring of that care and treatment.
… To that end it might in some cases modify the content of that duty of care but does not eliminate it. Thus, competing considerations come into play.”[5]
[5]Paragraphs 1 and 2 of the written submission
28 They further submit:
“Consistent with its obligations under the Mental Health Act, Forensicare remained under a duty of care for the safety of the worker so that it was obliged to consider the impact of a course of conduct in patient care pursuant to the Mental Health Act that might lead to an increased risk of injury in worker safety and to take appropriate steps to meet that risk.”[6]
[6]Paragraph 2 of the written submission
29 Defence counsel, for their part, submit:
“The content of the duty owed by Forensicare to the worker was affected by the statutory obligations of Forensicare under the Mental Health Act 1986.
… It is accepted that Forensicare owed to the worker a duty to exercise the degree of care which ought to be expected of a reasonable forensic mental health service to avoid exposing the worker to a reasonably foreseeable risk of injury.”[7]
[7]Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31
30 The defendant pleads the scope of the duty of care as set out in paragraph 11 of the Amended Defence dated 24 April 2013. That paragraph recites:
“a)At all material times the Defendant was an approved mental health service within the meaning of the Mental Health Act 1996.
b)At all material times the patient referred to in paragraph 8(c) hereof was a patient of the Defendant in its capacity as an approved mental health service.
c)Pursuant to Section 4(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 his 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 his rights, privacy, dignity and self respect were kept to the minimum necessary in the circumstances.
d)By reason of the matters pleaded to in paragraphs (a) to (c) hereof, the Defendant owed to the Worker a duty to exercise the degree of care to be expected of a reasonable approved mental health service in order to avoid exposing the Worker to a reasonably foreseeable risk of injury whilst also providing care and treatment to the patient in accordance with its statutory obligations as referred to in paragraph 11(c) (i) and (ii) hereof.”
31 The parties, it would appear, agree that in assessing the content of the duty owed by Forensicare to the worker, the Court is required to assess what ought reasonably to have been done in the circumstances by Forensicare to avoid exposing the worker to a reasonably foreseeable risk of injury whilst acknowledging that Forensicare was required to comply with its statutory obligations under s4(2)(a) and (b) of the Mental Health Act 1986.[8]
[8]See also Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
32 In addition, defence counsel submit that the general principles specified in s48 and s49 of the Wrongs Act 1958 have application to this proceeding.[9] They provide relevantly as follows:
[9]Victorian WorkCover Authority v Jones Lang La Salle (Vic) Pty Ltd [2012] VSC 412
“48 General principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
(3) For the purposes of subsection (1)(b)—
(a)insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b)risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.
49 Other principles
In a proceeding relating to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
33 It would appear to me that the parties have identified that the risk of harm, or an increased risk of harm, could arise out of:
(a) The foreseeable need for physical restraint of a patient by a nurse, or nurses, which could involve blows and or falls;
(b) The access by a patient to objects of sufficient mass, such that they could foreseeably be used as weapons (eg plastic jugs, billiard balls and cues et cetera);
(c) A physical intervention taking place in close proximity to steps leading to a change of floor levels, such that a fall from one level to another may foreseeably increase the risk;
(d) The lack of protection for a dispensing nurse by means of a screen in the dispensing booth foreseeably increasing the risk of harm;
(e) Failing to take account of the patient’s particular dislike for Nurse Walker, increasing a risk of harm.
34 Thus, in the overall context, the defendant conceded that in the circumstances of this case, the risk of harm to the worker was foreseeable and not insignificant with respect to sub-paragraphs (a) – (e) above.[10]
[10]Paragraph 18 of the submission
35 Accordingly, it would appear that the primary issue is whether the defendant, acting prospectively, and not with the benefit of hindsight, failed to take reasonable precautions to reduce the risk of foreseeable injury to the worker.[11]
Alternative cause of action: Occupational Health and Safety Regulations
[11]Vairy v Wyong Shire Council (2005) 223 CLR 422 at paragraphs [126] – [129] per Hayne J
36 By an Amended Statement of Claim filed during the course of the hearing, the plaintiff relied upon a breach of the Regulations made pursuant to the Occupational Health and Safety Act 1985, in particular Regulations 12, 13, 14 and 15 of the 1999 Regulations. In submissions, the parties also referred to, and relied on, Regulation 6 of the 1988 Regulations, and Regulation 10 of the 1999 Regulations.
The 1999 Regulations
37 “Hazardous manual handling” is defined in Regulation 13, relevantly, to mean:
“(a) manual handling having any of the following characteristics—
…
(iv) application of high force;
…
(b) manual handling of live persons or animals;
… .”
38 Regulation 13 requires an employer to identify any task involving hazardous manual handling.
Regulation 14 provides an employer must assess any such task to determine whether there is a risk of musculoskeletal disorder occurring as a result of the performance of that task. That assessment should take into account:
“(a) postures adopted;
(b) movements undertaken;
(c) forces exerted;
…
(e) the duration and frequency of the task.”
Regulation 15 provides an employer must ensure that any risk of a musculoskeletal disorder is eliminated or reduced as far as practicable.
Regulation 10 provides as follows:
“(1)Subject to this regulation, an employer must comply with this Part as soon as practicable on or after 1 July 1999.
(2)An employer who has complied with the risk assessment requirements under regulation 6 of the Occupational Health and Safety (Manual Handling) Regulations 1988 is deemed to have complied with regulations 13 and 14 of these Regulations in respect of a task involving hazardous manual handling, provided that the risk assessment has assessed the risk of a musculoskeletal disorder affecting an employee occurring as a result of that task.
…
(4)If sub-regulation (2) applies, an employer must comply with the duty under regulation 14(4) and record the risk assessment conducted under the Occupational Health and Safety (Manual Handling) Regulations 1988 to the extent reasonably possible.
… .”
39 Both sets of Regulations may be regarded as giving rise to a private right of action for breach of statutory duty, as well as informing the relevant duty of care at common law by requiring risk identification with respect to any tasks involving hazardous manual handling and by requiring the employer to ensure that the risk of musculoskeletal disorder associated with those tasks be eliminated or reduced, as far as practicable.
40 In the circumstances of this case, I find that the restraint of patients constituted hazardous manual handling and thus the employer was required to comply with Regulations 13, 14 and 15 of the 1999 Regulations.
41 Accordingly, the assessment of the reasonable response by the defendant, first at common law, must be looked at in the context of the matrix of legislative and practical matters referred to above. That same matrix, to an extent, will also inform as to whether there has been a breach of the relevant Regulations, at least insofar as determining what, in all the circumstances, was “practicable”.
Preliminary observations
42 Given the defendant’s concession that the first five matters referred to in paragraph 33 above give rise to a foreseeable increased risk of injury which was not insignificant, it appears to me that the reasonable response to any such risk would involve the following factors being taken into account:
(a) First, it must be foreseeable that any patient, at any time, may adopt a threatening demeanour, such that human intervention is required to restrain the patient in order to prevent injury either to himself or to others;
(b) Secondly, there is no evidence in this case that the immediate reasonable response required the use of weapons, such as batons, stun guns, sprays et cetera. The immediate reasonable response would appear to revolve around the issue of training of nurses with respect to the manner in which human intervention will be required without the aid of particular weaponry;
(c) Thirdly, that in circumstances where a restraint may be required, whatever its genesis, the immediate response to be employed, and the training of staff accordingly, is laid out in the protocol contained in the M4 Manual and in the general training and induction processes undergone by the worker;
(d) Fourthly, the question of the patient’s dislike for Nurse Walker, the easy access by the patient to a plastic jug of water with which to attempt an assault on Nurse Walker and the efficacy of the barrier separating the patient from Nurse Walker were addressed, at least in part, by the clinical assessments undertaken by both Nurse Walker and the worker with respect to the emotional disposition of the patient immediately prior to the incident;
(e) Finally, the provision of the barrier, the steps and the sunken area were functions of design said to be in keeping with the environment mandated by the legislation referred to above, and the risks occasioned thereby, were addressed once again by the provision of the clinical assessments referred to, together with the protocol laid down in the M4 Manual with respect to attempted restraints, as well as extensive consultation with various stakeholders.
43 Given in this case there is no suggestion that any form of weaponry should be used against the patient, it seems to me that the risk of musculoskeletal disorder involved in the hazardous manual handling of patients cannot be practicably eliminated, but it may be practicable to reduce those risks.
44 Before considering the reasonable response required with respect to each foreseeable risk of injury, it would appear appropriate to examine the evidence of the worker and Nurse Walker with respect to the circumstances surrounding the attempted restraint.
The Worker’s evidence: Evidence-in-Chief
45 The worker was born in October 1953 in England and was aged sixty-one years. He commenced his psychiatric nursing career in England in 1979 and became a Registered Psychiatric Nurse. He commenced his psychiatric nursing career in Australia in 1984 and went on to do general registered nursing whilst working with the Drug and Alcohol Services Council. He performed this work from 1984 until 1996. In 1996, he obtained the qualification of a Registered General Nurse after doing some further studies. Between 1996 and 1998, he gained a Diploma in HR Management. This Diploma was concentrated on the human resource area as a Psychiatric Nurse.
46 The worker was employed by Psychiatric Care Consultants in March of 1998 and he was placed by that company with Forensicare at the Rosanna facility in approximately 1998. In mid-2000, he was placed at the Forensicare facility at Fairfield, and he was there up until 2001.
47 The worker’s training in general as a Psychiatric Nurse included the handling of aggressive patients. This training was provided both by the employer and at Forensicare.[12] From time to time, there were refresher courses provided by Forensicare every three to four months.[13] These sessions involved the “de-escalation” of aggressive patients.[14] Specifically, the M4 course was implemented in training the nurses in how to deal with violent patients and how to de-escalate the situation.[15]
[12]T44, L22
[13]T44, L29-31
[14]T45, L2-7
[15]T45, L9-11
48 Further, the worker swore that he had been working in close proximity to violent and psychotic patients both in the United Kingdom and in Australia. Importantly, when asked if he could recall the instructions that were relevant to the M4 course, he stated:
“If there is a violent patient before you would actually set off the duress alarm to seek help first and foremost and then assist the team when they would arrive to contain the situation. In the meantime you would attempt to talk down the violent patient.”[16]
[16]T45, L26-31
49 The duress alarm in turn was an electronic device attached in “close proximity outside your pocket for easy access”.[17]
[17]T46, L13-14
50 The worker was then asked:
“So what was the first line of approach when you were confronted with a violent patient (in terms of what the M4 manual had instructed him to do)?”
and he replied:
“I can only go on my recollection. … If you’re able to talk down the individual then talk them down.”[18]
[18]T47, L12-14
51 When asked to expand on this explanation, the worker said:
“[It has] a lot to do with emotional intelligence, being able to read the situation of the individual for who they are, what they are looking at, their behaviour, considering the form of speech and the contents of speech, how much insight they had at that time and in particular their judgment and where they are at.”[19]
[19]T47, L15-24
52 Further, the worker stated:
“You look at things intuitively as well as being able to read the situation and if possible just by saying to them sometimes just calm down, let’s have a drink have a coffee, you use your skills of communication skills.”[20]
[20]T47, L29 – T48, L2
53 The worker was then asked:
“What’s the next step if it’s clear to you that the patient is violent and is not going to be talked down?”
and he replied:
“If possible, if possible the duress alarm … and then there’s the isolation of other patients. So it could be anything, grabbing a mattress or something like that, you have to minimise the situation where possible, number one, the duress alarm, number two, to clear the area off from a violent patient.”[21]
[21]T48, L7-16
54 Thereafter, the worker was asked:
Q:“Are there situations where in your own judgment you don’t use the duress alarm. What’s the situation if you can’t talk them down?---
A:Duress alarm.[22]
[22]T48, L19-20
…
Q:What’s the situation if the violence that the patient is exhibiting is continuing?---
A:Isolate the situation, move away, contain it.
Q:To contain it what do you do?---
A:I would either close off the area, the room if we was in a room and get on the other side of the door.
Q:What if the patient is attacking and doing damage physical damage to either another patient or a nurse at the hospital?---
A:The duress alarm always first where possible.
Q:If it’s not possible?---
A:Then you would go in and give assistance to a colleague.”[23]
[23]T48, L18 – T49, L1
55 The worker was then asked:
Q:“What was the system that Forensicare used for bringing patients in for their medication?---
A:They would be contacted and asked to go to the treatment room and receive their medication.”[24]
[24]T50, L21-24
56 Thereafter, the medication nurse, being Nurse Walker, would request him to bring Patient ‘X’ up to the medication dispensing unit. The patients could be anywhere in the Argyle Unit, the run room, television room, toilet, or elsewhere within the closed environment.[25]
[25]T51, L1-9
57 Prior to collecting Patient ‘X’, the worker had access to the handover information and he was “appraised of the idiosyncrasies of the various patients in the ward”.[26]
[26]T52, L12-18
58 The worker’s knowledge of Patient ‘X’ was that he was known to be volatile patient of unpredictable attitude and temperament and known to be violent. He had been warned of these characteristics by Forensicare on many occasions.[27]
[27]T52, L19-23
59 When asked to expand about his violent temperament, the worker stated:
“He could become volatile depending on some subjects that you would touch on, sensitive areas concerning his partner and apparently there was a child and in some cases medication as well.”[28]
[28]T52, L28 – T53, L2
60 Forensicare had not given him any directions or warning concerning the relationship that existed between Nurse Walker and the patient.[29]
[29]T53, L10-13
61 Nurse Walker had pointed out to him the difficulty of that particular patient. In particular:
“Communicating certain areas of therapy responding, wanting to respond, very brief though.”[30]
[30]T53, L14-18
62 The worker could not recall any difficulty bringing the patient to the dispensary door.[31] He could recall walking with the patient up the steps that were closest to the dispensary door.[32]
[31]T53, L21-22
[32]T53, L23-27
63 In accordance with his instructions, he took up a position in close proximity behind the patient at arm’s distance.[33]
[33]T54, L5-9
64 The medication was then placed (by Nurse Walker) in a small plastic container, about the size of a shot glass. He could not recall whether the patient had a glass of water. He then saw that the patient picked up the plastic jug of water on the ledge and “thrust it in the face of Peter Walker”.[34]
[34]T55, L30-31
65 Asked what he did next, the worker replied “bear hugged him”.
66 The worker was then asked:
Q: “Why didn’t you talk him down?---
A:Natural impulse with this individual, I just - I called it intuitively with this sort of individual when he reached up, adrenaline going, that’s it, he doesn’t listen.”[35]
[35]T56, L21-25
67 The worker was then asked:
Q:“You have told us in your teaching the duress alarm is part of your armoury if I could call it that, why didn’t you use the duress alarm?---
A:It’s an impulse, I saw a colleague injured and it was a fraction of a second, it happened.”[36]
[36]T57, L8-12
68 The worker was then asked:
Q: “So what happened after you put the patient in the bear hug?---
A:He started pushing backwards and we went to the steps and I fell down the steps with the patient on top of me and then with the other colleague … Ian Thomas on top of me.”[37]
[37]T57, L16-20
69 Thereafter, he was asked:
Q:“In other psychiatric institutions you have worked and prior to 2001 was there a different method used for dispensing the water, in other words was it always in a plastic jug on a bench, not necessarily at Argyle but at other places?---
A:We used to pour it out for the patients.
Q:So the person in the dispensary would pour it out?---
A:It has been, at different units have had different protocols.
…
Q:What other systems had you come across?---
A:Either we get it for them or we get them, depending on the unit, if it’s long-term you encourage independence, but yes, you either pour it out for them or you get them to pour it for themselves.
…
Q:Patient X, was he short-term or long-term …?---
A:… short-term”.[38]
[38]T61, L12-31
Cross-examination of the Worker
70 The worker was cross-examined about his prior experience with psychiatric patients to the following effect:
Q:“You therefore worked in obviously psychiatric wards?---
A:Psychogeriatric and the equivalent to the forensic here, secure ward yes, the word is secure.
Q:In that period of time you were working with patients who because of their psychiatric condition were required to be kept in a locked ward?---
A:Yes.
Q:And when you say you were dealing with forensic patients, are they patients who were at that time individuals who were affected by various psychotic conditions?---
A:Yes.
Q:In particular schizophrenia?---
A:In particular schizophrenia or sociopathic disorders.
Q:And individuals who were present in the unit because they had a criminal history?---
A:Correct.
Q:And those individuals were generally of a type who had undertaken some sort of violent crime in some way affected by the psychiatric disorder?---
A:A liability to themselves or to other and society.
Q:So in that period of time you had experience in dealing with these types of patients in a secure environment who were known by you to be potentially violent?---
A:Correct.
Q:And certainly from time to time psychotic?---
A:Yes.
Q:Over that period of time the patients you dealt with were patients who were affected by acute psychiatric conditions?---
A:Acute and chronic. Yes.
Q:And by acute so we understand the terms, what does acute mean in the circumstance we're talking about as opposed to chronic?---
A:Okay, acute is when they start exhibiting some florid psychiatric personality disorders associated - as opposed to chronic where they have long-lasting conditions that are usually stable as opposed to acute which is usually unstable.
Q:So over that period of time you used your training as a psychiatric nurse to be able to evaluate the patient with whom you were dealing in terms of the psychiatric state they were suffering from?---
A:Yes.
Q:You were in a position to determine whether they were in an acute state as opposed to a chronic state?---
Q:We can always be surprised.
A:But generally you had the skill to assess at what stage a person was with respect to the psychiatric condition they were suffering from?---
A:Yes, generally, yes.
Q:Did you also undertake in this period of time from 1979 to about 1984, specialing of patients?---
A:Specialing?
Q:One to one nursing care?---
A:Yes.
Q:And was that again because of the fact that the patient you were required to care for might have been in a florid psychiatric state posing a risk of self harm to himself and others?---
A:Let’s say if they need to go to the hospital and you need to accompany them on a one to one basis if they were severe it would be a two to one basis or even three, in some ways cases three to one.
Q:Over this period of time, again 1979 to 1984 you used communication skills that you had learned and applied over that period of time to talk to the patients whom you were involved in nursing?---
A:Correct.
Q:And it was through that process of communication that you were able to gain insights into the patient's cognitive thought process from time to time?---
A:I would say so.
Q:And that training enabled you to assess the patient in terms of firstly their insight?---
A:Correct.”[39]
[39]T62, L5 – T64, L2
71 Then, specifically, the worker was cross-examined about his experience at Rosanna, another similar facility managed by the employer, to the following effect:
Q:“In terms of if one wanted to generalise about the patient populations at Rosanna, they were individuals who could be psychotic?---
A:A majority all were, it was a secure unit.
Q:The majority affected by illnesses such as schizophrenia?---
A:Schizophrenia, yes.
Q:The majority had instances where they would come to the attendance of the courts through criminal conduct?---
A:Yes.
Q:And had committed violent crime?---
A:Yes.
Q:And by violent crime by way of example, serious assault would be one instance of the sort of crime these individuals had been engaged in?---
A:Horrendous crimes, yes.
Q:Even more serious like murder?---
A:Most definitely yes.
Q:And other forms of serious - - -?---
A:Atrocities yes, I think they were yes.
Q:Atrocities, yes. So many of these individuals who you were looking after at Rosanna they had been certified under the Mental Health Act, had they not?---
A:Correct.
Q:As requiring involuntary treatment?---
A:Most of them.
Q:That’s again as it were a major characteristic of the individuals you were nursing at Rosanna?---
A:Good portrayal, yes.
Q:Again, did you use the same sort of psychiatric nurse skill set we have spoken about when you were at Runwell and elsewhere for the purposes of carrying out your nursing activities in dealing with these people at Rosanna?---
A:Yes.
Q:How long were you at Rosanna approximately?---
A:About 12 months I think approximately yes.
Q:And you were full-time there?---
A:I was full-time there.
Q:Carrying out similar sorts of nursing activities as those you carried out at the Thomas Embling Hospital?---
A:On some occasions I acted up as the senior on that day.
Q:So on occasions you acted as an acting nurse unit manager?---
A:For that unit, yes, occasionally yes.
Q:And the units when you were acting as nurse unit manager were similar to the Argyle Unit at Thomas Embling?---
A:No.
Q:No, in what way were they different?---
A::Ellery where I was, that’s the same of the unit I was at was a long stay unit, in other words a chronic unit, Argyle was a short stay, short stay there meaning the assessment, diagnosis and treatment usually by court order going there to be assessed. A lot of them were taken off medication so they could exhibit floral characteristics of psychiatric disorders as such. The ward I was on you mentioned, Macleod or Ellery was a long stay, these were more, chronic conditions, little bit different but - - -
Q:All right, the training that you got from Forensicare whilst you were at Rosanna was one which involved you in being directed to always be aware when you were around these sorts of patients?---
A:Most definitely.
Q:And the training you got was to not only be aware but vigilant about patient behaviour and patient interaction, one with another and with staff?---
A:Correct.
Q:And your role there in terms of pursuing the training was therefore to constantly observe the patient population and also the patients who you were directly assigned to as the treating nurse?---
A:Yes.
Q:And you would enter into the same sort of interaction with the patient with a view to trying to form a relationship with the patient so you could get to know the patient, get to understand his thought process?---
A:Correct.”[40]
[40]T66, L8 – T68, L13
72 The worker was then asked about the handover procedure at Rosanna and at the Thomas Embling Hospital, to the following effect:
Q:“When you were working at Rosanna there were hand-overs which took place at the commencement of each shift from the outgoing nursing shift to the oncoming shift, is that so?---
A:Correct, yes.
Q:That was a circumstance in which information regarding the particular patients on the ward was provided by one shift to another?---
A:Correct.
Q:And generally the position was the shift leader of the unit manager would provide a hand-over to the oncoming nursing staff about all of the patients on the relevant ward?---
A:Correct.
Q:And the hand-over would identify risk assessments which had been made of the nurses on the ward by the staff at the outgoing shift?---
A:Yes.
Q:So one of the features of the hand-over at Rosanna was the oncoming shift would receive information about any particular observations that had been made by the outgoing shift regarding patients’ behaviour?---
A:Correct.
Q:And whether that behaviour had departed in some way from previously observed behaviour?---
A:Correct.
Q:And the whole idea of this process was to ensure the oncoming shift were fully appraised of all relevant information regarding the behavioural pattern of the patients on the ward?---
A:Yes.
Q:Risk assessment is a very important part of psychiatric nursing, isn’t it?---
A:Yes.
Q:Insofar as the patients are concerned?---
A:Yes.
Q:And certainly insofar as the nursing staff are concerned?---
A:Yes.
Q:So the important thing is that if there is any variation in relation to observed patient behaviour nursing staff are fully appraised when they come onto the shift?---
A:Correct, yes.
Q:And it’s the nursing staff's function when they come on to the shift to continue to interact with patients?---
A:Correct, yes.
Q:And by that process of interaction and with the use of their nursing skills to continually evaluate the patients who are on the ward?---
A:Correct.
Q:And if there is any observed change in the behavioural pattern or the thought content or the symptoms displayed by the patient they are matters which the nursing staff note and pass on to the next shift?---
A:Yes.
Q:And the whole idea of the risk assessment of the patient is to identify the potential for risk, firstly to the patient himself, one reason for doing it, to evaluate risk of self harm?---
A:Yes.
Q:Another purpose of course is to evaluate potential risk to other patients on the ward by a particular patient in question?---
A:Yes.
Q:And the other good reason for carrying out the risk assessment is to ensure staff are appraised of any potential risk which the particular patient might present to them?---
A:Correct, yes.
Q:And that is the staff who are currently on the shift and for oncoming staff in following shifts?---
A:Ongoing, yes.
Q:Yes. And this system which existed at Rosanna was an ongoing means by which risk assessment in relation to the handling of patients was identified?---
A:Yes.
Q:And there was a process of ongoing risk assessment by virtue of the matters we have just been discussing?---
A:That’s right, yes.
Q:That system at Rosanna speaking about risk assessment via the hand-over process and continuing risk assessment, was also the system that existed at Thomas Embling, wasn’t it?---
A:Yes.”[41]
[41]T69, L13 – T71, L18
73 Concerning when the worker was first placed at the Thomas Embling Hospital, he was asked the following questions:
Q:“And when you got to the hospital you underwent various induction training at Thomas Embling?---
A:Yes.
Q:You also underwent training in relation to patient restraint?---
A:Yes.
Q:I will come to it in a minute, it’s called the M4 training module?---
A:Sounds familiar, yes.[42]
[42]T72, L31 – T73, L5
…
Q:Dealing with the training you got from Forensicare at Thomas Embling, firstly it was very similar to the training you received at Rosanna?---
A:Yes.
Q:And I’m not going to slavishly go through the sorts of proposition I put to you previously at Rosanna, but the sorts of issues that were raised with you in relation to the training was the need on your part to be aware and vigilant about patient behaviour?---
A:Yes.
Q:That your involvement as a nurse in the unit was to be one which involved a constant ongoing observation of patient behaviour?---
A:Correct.
Q:And that would be the patient population generally and also the patients to whom you had been assigned as a psychiatric nurse?---
A:Yes.
Q:You knew that your role from your previous training and from the training you got at Forensicare at Thomas Embling was to ensure you engaged patients as much as you could?---
A:Yes.
Q:With a view to establishing a rapport with the patient?---
A:Correct.
Q:That was going to help you to, I think to use your words, to read the patient, would that be right?---
A:Yes.
Q:And that was really part of the process to ensure that you had the best insight that you could have into the patient with a view to identifying any prodromal symptoms or signs that might herald some sort of inappropriate behaviour on the part of the patient?---
A:Correct.”[43]
[43]T73, L28 – T74, L24
74 Then, with respect to the M4 Training Manual, the worker was asked:
Q:“The M4 training you got was a form of training that dealt with not unnaturally because it's called M4, the 4Ms, the management of aggression, would you accept that?---
A:Yes.
Q:The management of the patient?---
A:Yes.
Q:The management of staff?---
A:Yes.
Q:And the management of environment?---
A:Yes.”[44]
[44]T74, L25-31
75 With respect to the specific training the worker received at the Thomas Embling Hospital, the following interchange took place:
Q:“In respect of the specific training you got at Thomas Embling you were involved in workshops at Thomas Embling?---
A:Yes.
Q:This was on induction?---
A:Yes.
Q:And also received refresher training from time to time over the period of time you carried out your work with Thomas Embling?---
A:Correct, yes.
Q:The sorts of training you got I will just run through and tell me whether you agree or disagree, the concepts that the training covered related to the potential causes of aggression?---
A:Okay.
Q:The early warning signs that might indicate an escalation in patient behaviour leading to aggression?---
A:Yes.
Q:Training in respect of the prevention and management of aggression?---
A:Yes.
Q:And particular strategies which could be undertaken in managing the aggressive patient?---
A:Yes.
Q:That was one aspect of your training. If I can then put this to you, the training also covered crisis communication between yourself and the patient?---
A:Yes.
Q:That was a form of training dealing with endeavouring to effectively communicate between yourself and the patient in circumstances of crisis?---
A:Yes.
Q:And the training also dealt with the issue of the de-escalation of potentially aggressive situations?---
A:Yes.
Q:The concept of de-escalation was one which involved you in approaching the patient who might be exhibiting aggressive or potentially aggressive behaviour?---
A:Yes.
Q:And endeavouring to communicate with them to firstly understand what the cause of the problem was that was causing the symptoms or the potential problems that may have been reviewed or may have been seen by you?---
A:If you have the luxury of time, yes.
Q:And one of the things that you were taught as part of this de-escalation process was to endeavour to engage the patient if you could?---
A:When possible.
Q:And the purpose of the engaging of the patient was to get an insight or a further insight in relation to what was troubling a patient?---
A:Ideally, yes.
Q:And the training then was to having if possible gained insight in relation to that which was troubling the patient, to try and alter the patient's focus to reduce the issue that was causing them concern?---
A:That sounds - yes.
Q:Of course de-escalation didn’t always work?---
A:That’s right.
Q:But it was the first step to be taken if possible when dealing with the aggressive patient?---
A:M’mm.
Q:Correct?---
A:Yes.
Q:I just want to put this for completeness, the training you also got dealt with the legal framework that was relevant to Forensicare which related to legal principles regarding assault, correct?---
A:Correct, yes.
Q:And legal principles regarding seclusion of patients under the Mental Health Act?---
A:Yes.
Q:And the responsibility that you had as a health professional in terms of the management of the aggressive patient?---
A:Yes.
Q:The training also included a concept of break away training, that is a form of training that you got where a patient might have grabbed you in a particular way and how you might free yourself from for the predicament physically?---I can vaguely remember that one, yes.
Q:And then the final aspect of your training that I wanted to talk to you about were issues in relation to physical restraint. The first aspect of the training was this, I suggest, that if there was to be a physical restraint of a patient then a minimum of four staff were required to be involved to undertake that restraint?---
A:That sounds about right, yes.
Q:And another principle that was identified in the course of the training was that the nurse should not attempt physical intervention with a patient unless it was safe to do so?---
A:It’s - I see it’s a leading question.
Q:Yes, it is, but I’m suggesting to you that’s an aspect of the training that you got, that you shouldn't undertake physical intervention with a patient in the unit where you were working unless it was safe to do so?---
A:I suggest idealogically [sic] yes, ideally in hindsight yes, and idealogically [sic], yes.
Q:The relevant steps to take prior to involving one’s self in any way with a patient physically was to undertake a de-escalation process?---
A:Correct, yes.
Q:Give that a try and see whether you could engage with a patient, see what was troubling him and try and change his focus?---
A:Yes, if possible.”[45]
[45]T75, L1 – T77, L24
76 If the nurse was unable to “talk the patient down”, the worker was questioned as follows:
Q:“If that wasn’t working and it was considered that there was a need for physical restraint of the patient, the next step that had to be taken was to sound the personal duress alarm?---
A:Yes.
Q:And we spoke about that duress alarm yesterday, it was an alarm that you always had with you on the ward?---
A:Correct.
Q:And you had a good knowledge in relation to how that alarm was to be operated?---
A:Yes.
Q:The reason for the alarm or the operation of a duress alarm was to ensure that other nursing staff were alerted to the problem that was confronting you, the nurse, in the unit?---
A:Yes.
Q:So that the sounding of the alarm would result in all available nursing staff within the unit attending to the area where the cause for concern was?---
A:Yes.
Q:And that alarm also had the function of effectively alerting other nurses in other units at the Thomas Embling hospital, didn’t it?---
A:Yes.
Q:Those people who were in the other units were known as first responders, weren’t they?---
A:Yes.
Q:So that when you sounded your alarm all available nurses within the unit would attend and those people who had been rostered as first responder in other units would also attend in response to the alarm?---
A:Yes.
Q:So the system was once the duress alarm button was sounded the immediate response of nursing staff in the unit was to attend, correct?---
A:Correct, yes.
Q:And the first responders would also attend, is that so?---
A:Yes.
Q:That would result in the proposition in the event physical restraint was necessary you would have assembled at least four nursing staff before any attempt was made to actually physically restrain the patient?---
A:Minimum of four, yes.
Q:A minimum of four?---
A:Yes.”[46]
[46]T77, L25 – T78, L29
77 Once the alarm had summoned a number of nurses, the process was as follows:
Q:“The system in respect of the restraint of a patient was that before the restraint was effected there would be a very short meeting whereby one nurse would be assigned one arm, one nurse would be assigned the other arm, left or right, one nurse would be assigned the patient's legs and one nurse would be assigned to care for the patient's head in the course of the restraint?---
A:Correct.
Q:That was the system of the operation of the restraint, and the knowledge people would respond to the alarm were all matters in respect of which you had received training at Forensicare?---
A:Correct.
Q:Indeed, also training at Thomas Embling and Rosanna?---
A:Correct, yes.
Q:So there was no issue that you were fully appraised of the relevant system which was in place in the event that it was considered that physical restraint was necessary of a patient?---
A:Yes.
Q:When you got the initial training at Thomas Embling on induction I think you indicated there were refresher courses at Thomas Embling?---
A:Yes.
Q:And did those refresher courses take place depending on your availability, they were available to be undertaken every month or so, were they not?---
A:I think every couple of months, yes.[47]
[47]T78, L31 – T79, L24
78 As to his particular role on 17 February 2001, the worker was questioned as follows:
Q:“Your role on this particular day was to be the surgery assist nurse, wasn’t it?---
A:Yes.
Q:And your function was to ensure that the medication given to the patient was actually consumed by the patient?---
A:Correct, yes.
Q:Your function was to be in reasonable proximity to the patient so you could observe the patient taking the medication?---
A:Close proximity, usually closer than the arms which we were trained for, so close.
Q:Would you accept in the order of 1 to 2 metres away from the patients?---
A:Even closer, you have to see what they are doing with the medication.
Q:The function you were to perform was to encourage the patient to take the medication?---
A:It all helps.
Q:But your function was not to in any way physically interact with the patient to force him to take it?---
A:No, never, no.
Q:In the event the patient didn't take the medication then what would happen is the patient would be asked to leave the area of the medication dispensary, is that right?---
A:They would be encouraged to leave, yes.
Q:He would then be spoken to by a nurse about the issue as to why he was not prepared to take his medication?---
A:Appropriate time, place, yes.
Q:So it simply meant that was not necessarily part of your duty to actually counsel the patient then and there?---
A:You can coerce, they might just need encouraging so you just don’t shut up, you use your skills as you indicated to communicate to somebody.
Q:Notwithstanding your encouragement of the patient, if they were not prepared to take it they would be asked to leave the area and then be spoken to at a later point in time by another nurse, correct?---
A:In a passive manner, yes.
Q:It might be you or somebody else who had been assigned specifically to the patient?---
A:Yes, that's correct, yes.
Q:It was no part of the function as I say in any way physically to coerce the patient then and there to take the medication?---
A:No, not at all.
Q:So there is no reason on the basis of the Forensicare system that was then in place for any form of physical interaction between you as the surgery assist nurse and the patient?---
A:Most definitely not, no.
Q:Your function was really one of an observatory type nature to see what the patient was doing to ensure that you were satisfied he in fact consumed the medication?---
A:Of compliance, yes, compliance.”[48]
[48]T79, L27 – T81, L12
79 As to the particular system of dispensing the medication, the worker was asked:
Q:“The system in terms of the dispensing of medication at the dispensary area was that the door to the dispensary was locked at the time at which medication was to be dispensed?---
A:I would consider it part of my job to make sure it was locked as well, yes.
Q:So you would be comfortable with the proposition on this particular occasion you would know the door was locked?---
A:Yes.
Q:Your evidence yesterday was to the effect Mr Walker had asked you to arrange for the patient to come to the dispensary area for the allocation of the medication he was to have?---
A:Yes.
Q:And your evidence yesterday was to the effect you had no difficulty in gaining his attendance and cooperation in order to come to the dispensary area?---
A:None whatsoever.
Q:He had not been reticent about the prospect of taking medication in relation to anything he had said to you?---
A:On that day, no.
Q:He had not been in any way to your observations aggressive in relation to the forthcoming event of being provided with his medication?---
A:No, no.
Q:And he had not in any way been abusive to you or indeed to anybody else within your hearing during the passage of locating him from where he was in the Argyle Unit to the medication dispensary area?---
A:I had a good relationship with him.
Q:And you recall the patient obviously enough?---
A:Yes.
Q:You have a recollection of him such that you recall dealing with him on days prior to 17 February 2001?---
A:Yes.
Q:And he was a patient who you had been able to, using your psychiatric nurses skillset, to interact with?---
A:Yes, very well, yes.
Q:So you were able to establish a relationship with him over the period of time you had been involved in his care?---
A:Yes.
Q:And as a consequence of that you had a degree of rapport with him in relation to talking to him and interacting with him?---
A:I believe I had a good rapport with him.
Q:That was an important aspect so far as you were concerned as a psychiatric nurse because they are factors that assist you in identifying any potential problems that might arise that might herald some sort of aggressive behaviour?---
A:Integral part.
Q:So based on your knowledge of the patient and the assessment you have been able to make of him over the period of time you had interacted with him, you could discern no evident concern about his psychiatric state at the time that you attended to ask him to go to the dispensary?---
A:The best I have seen him, he was very good.
Q:And that position persisted up until the time that the incident occurred?---
A:Yes.
Q:So the short point is there was simply no prodromal symptoms or signs exhibited by the patient which in any way gave any warning he might have undertaken this particular action?---
A:None whatsoever.”[49]
[49]T81, L25 – T83, L19
80 Although the worker was a little vague as to what actually occurred next, he was asked:
Q:“Would that be the usual practice, that the medication is given to the patient together with a cup of water?---
A:It depends on who is the treating nurse, it depends, you encourage the patient to do as much as they can but sometimes if you do something for them they are a little appreciative of it, it helps part of the building of the close communication. If you pour it out for them and you're chatting, asking how they are okay, so you're trying to build up this rapport and part of that is being hospitable, teaching them the aspect of being hospitable.
Q:So was it part of the process at Thomas Embling in dealing with patients in this unit that they would be encouraged to undertake some aspect of their own medication regime, to be part of the whole process?---
A:It’s possible, yes.
Q:But that was part of the psychiatric approach to these patients, wasn't it, to endeavour to have them involved in taking the medication so they became more accepting of it?---
A:Yes, independence, looking at independence, yes.”[50]
[50]T84, L5-25
81 The worker was then asked about the physical differences between the facility at Rosanna and the Argyle Unit at Thomas Embling, to the following effect:
Q:“One of the most obvious differences between Rosanna and the Argyle Unit at Thomas Embling was the Argyle Unit was a structured lay out in such a way to have more of a domestic or residential feel to it compared to that which was at Rosanna?---
A:Yes, it had the split level floor, the Argyle had a split level floor, a drop floor.
Q:As you understood it, it was to provide for a type of residential or domestic feel to the environment?---
A:Yes, in appearances, yes.
Q:And from your training as a psychiatric nurse is it the position that the placement of patients such as those who were in the Argyle Unit in this more domestic and residentially based environment was likely to be productive of better patient response behaviour?---
A:I don’t agree with the layout of this unit at all, to answer the question I cannot agree with that, no.
Q:Perhaps just by way of general principle can I ask you this question in terms of psychiatric approach to patients; it is a generally accepted proposition that a residential or domestic environment to house patients of this nature is likely to be more productive of better patient behaviour generally in the psychotic patient?---
A:You’re entering a scenario of debate that - environmental architectural design associated - remember, it’s an acute ward, most people are under psychosis at that time as opposed to a comparison between the Argyle Unit which a short stay ward to a long stay ward, I can understand how the patients – it would be very desirous to be in a place like that but Argyle by nature - you have to go back to the nature of that ward. It was primarily an assessment, diagnosis and treatment so with that in mind you are – we’re dealing with individuals that are volatile in more ways than one. So I understand what you’re saying, and to the untrained eye and untrained worker there they would say it’s a lovely place to work, it looks good, but having a split level floor in that area it didn’t seem right to me and to this day I can’t agree with it but it’s a beautiful place. Ideally I know where you’re getting at, to the individual that’s not well versed in that area I can understand them saying it is a nice area, what needs to be taken into consideration is what we needed to do as psychiatric nurses to actually deal with these individuals. So my answer there is – I think I have explained my thoughts on that.
Q:You accept there might be differences of opinion held by individuals involved in psychiatry and forensic units?—
A:Yes, I do.”[51]
[51]T85, L10 – T86, L27
82 When questioned further about the actual incident, the worker was asked:
Q:“We understand from statements provided to us that Mr Walker would say the jug was thrown at him rather than the patient holding onto it and thrusting it into his face?---
A:I accept what Peter would say.
Q:When the patient did this you had the duress alarm immediately proximate to you on your belt?---
A:Correct.
Q:All of your training was to the effect that you could firstly if you considered it appropriate endeavour to de-escalate the situation with the patient, would that be right?---
A:Sorry, just repeat that again, sorry?
Q:Your training was to the effect this incident had occurred and the first thing that could have been undertaken by you if you considered it appropriate was to endeavour to de-escalate the situation with the patient?---
A:We are we talking about patient X or a hypothetical patient?
Q:By patient X, I’m talking about patient X?---
A:Are we talking about a micro second?
Q:You made a quick decision, I understand that?---
A:Like a fraction of a second.
Q:Perhaps if I can ask you this question, the training that you had provided to you by Forensicare both in Rosanna and Thomas Embling was to the effect that what should have been done as a first option would have been to endeavour to de-escalate the situation with the patient X?---
A:If you’re a computer yes, I’m a human being.
Q:But you’re not a computer, you’re a human being?---
A:I’m a human being.
Q:And the importance about acting in these situations was to have regard to your training, wasn’t it?---
A:Idealistically, yes.
Q:But also practically for the purposes of looking after your interests and the interests of the patient?---
A:Once again, yes.
Q:What you’re required to do was to endeavour to engage him if you could, try and alter his focus, work out what the problem was, that was the process of training that you had been given?---
A:You’re asserting something that is ideal again.
Q:I understand but nonetheless it was training that was to be put in place as you understood it in circumstances where there had been aggressive physical behaviour by a patient?---
A:If you have that - as I understand earlier if you have the luxury of time but you call it, you call as you see it, you put your training into motion whenever ever possible. It so happened that relationship that we have just talked about getting patient X, walking with him, able to talk with him, I was able to determine that his demeanour of that particular morning was approachable and I had a good relationship with him. I believed that I was able to do things with this individual, get close to him and his conversation and all the rest of it and help him to understand himself and I was in the process, working with anger management that this individual had and I had helped and worked with him how to take control of himself.
Q:Stopping you there for a second, you had spoken to him about anger management?---
A:Yes.
Q:And had you spoken to him about the ways in which he could deal with anger management himself to provide himself with some degree of control over these issues?---
A:Yes, I did.
Q:What did you tell him?---
A:Okay, I’m trying to condense my words.
Q:That’s okay, just the gist of it, what did you tell him?---
A:An individual has certain core beliefs, core beliefs that can trigger emotions and these emotions can then translate into behaviours. It’s part of the cognitive behaviour therapy approach which I look at.
Q:It’s getting the individual to be aware of approaching - or feelings that can arouse anger as we all know.
A:When that happens - sorry, getting back to your – when that happens, when he feels the adrenalin within himself it’s called self talk, you acknowledge it, but you try to say to yourself calm down, please calm down. This is the sort of thing I had been working with him on although he wasn’t - he wasn’t my patient. I still as part of the way I work in any case, and I believed that I could have activated something within him so he could have realised where he was at and talk himself down.
Q:Understood, so you had been engaging with him previously with a view to providing him with potential mechanisms to assist him in anger management by himself?---
A:Spot on, yes.
Q:So this episode occurred, and I appreciate you say you made the decision in a short space of time to do what you did, but the very fact you had been in a position to engage with him gave you at least the potential for thinking, I suggest to you, that you could talk to him and endeavour to deal with the situation by de-escalation; what do you say to that?---
A:That is one way. And that’s how we were trained.
Q:That was a way that was potentially open to you at that point in time given the rapport you had established with him?---
A:Yes.
Q:You had seen him perform the action with the jug and you had seen or had, I think to use your words yesterday, you had a vision of Mr Walker with a bloodied face, would that be fair?---
A:Yes.
Q:At that point in time when the patient had performed the actions so as to strike Mr Walker the patient was clearly enough facing Mr Walker, would that be correct?---
A:M’mm.
Q:You tell me if you're not happy with any of this?---
A:That becomes - all I know is my arms were - I was bear hugging him before I even acknowledged - spontaneous.
Q:But your memory is that the action was undertaken by the patient and you immediately placed him in a bear hug, is that right?---
A:Yes.
Q:And you bear hugged him from behind the patient?---
A:Correct.
Q:At that point in time clearly enough you would not be in a position to see his face and how he looked?---
A:I’m looking from the side, a side view of him I'm seeing.
Q:But you bear hugged him from behind?---
A:Yes.
Q:At that point in time you would not have been in a position to see his face, how his facial countenance appeared?---
A:I can see it quite clearly in my - are you talking about his countenance, I’m seeing somebody that is very, very angry and very riled.
Q:You speak about the anger in his face, that’s as a consequence of the image you now see, is it not?---
A:It’s an image I see.
Q:At the point in time, and again this is a short point in time when you make the decision to do what you do, but Mr Walker was at that point in time behind a locked door?---
A:Yes.
Q:And the point would be that in terms of Mr Walker’s personal safety though he had been struck, given the door was locked the capacity of the patient to cause any further harm to Mr Walker was probably at an end?---
A:Look, I thought - I have thought about this, whether you want to hear my thoughts on it I don’t know.
Q:Not so much your thoughts but your response to the question which is given what had transpired we know Mr Walker had been struck in the face by the jug, we know the door was locked, at that point in time the potential for patient X to do any further harm to Mr Walker was probably at an end?---
A:Well, you have got to hear my thoughts otherwise I can’t - - -
Q:I’m putting to (sic) question to you so you can respond as you see fit?---
A:As we heard yesterday this gentleman was fairly large, he was big and strong.
Q:You said he was over 13 stone and about 5 foot 11 and stocky and muscly?---
A:Okay, so if he had it in his mind he wanted to get into that - I pose this question now, okay, I haven’t got the answer because this is all what I’m thinking about it, I really want - - -
Q:Can I ask you this question, were these your thoughts at the time or are these your thoughts on reflecting on the evidence over time?---
A:Probably both actually, when - look, someone like that could have kicked the treatment door in, there is the possibility and that’s all it is, I can only put forward a possibility but to answer your question, look, I bear hugged the guy, right, you think I had point 5 of a second for that to go through my head? No.
Q:So you acted by grabbing the patient because at that time that was the first thing that came into your head?---
A:I had confidence enough to be able to - I had confidence enough I believed to be able to talk him down and from the back and the whispering into his ear, ‘take control, take control’.
Q:But the difficulty with the approach that you took I suggest to you is that by physically engaging with the patient by grabbing him from behind in a bear hug there was significant potential for the patient to then react physically to you?---
A:Yes.
Q:And that was going to place you certainly at significant physical risk in endeavouring to deal with him?---
A:Yes.
Q:And the training, coming back to the M4 training, if there was to be a physical restraint of the patient then your training was to be effect that you ought to have sounded the personal duress alarm?---
A:Behind - - -
Q:That was the first step?---
A:In hindsight, yes.”[52]
[52]T88, L1 – T93, L20
83 When it was put to the worker that he had told a consultant psychiatrist, Dr Mendelson, in July 2004 that he “ruminates about the mistake of having assisted his co-worker rather than pushing the duress button”, he replied he could not specifically recall but that it would “not be inconsistent with [his] own thought process, even now, that it was relevantly a mistake to have assisted the co-worker rather than having pressed the duress button”, he answered “yes, that’s true”.[53]
[53]T94, L1-21
84 On further questioning the worker agreed that he had been involved in restraining patients in the Argyle Ward prior to 17 February 2001 and that patients themselves become accustomed to having to be physically restrained.[54] In those circumstances, the following interchange took place:
[54]T94, L22-27
Q:“They know that they are going to be physically restrained when the nurses turn up?---
A:Yes.
Q:And is it the position on occasions, not all the time but on occasions when we might have four or maybe five or so nurses surrounding the patient that an attempt is then made to again endeavour to de-escalate the situation with the patient?---
A:Yes.
Q:And that is frequently beneficial in avoiding the need for physical restraint because the patient appreciates if he doesn’t cooperate and doesn’t calm down then he’s going to be restrained and taken to seclusion?---
A:Yes.
Q:So again, as part of your own knowledge patients once faced with the prospect of restraint can be more amenable to a de-escalation type approach when they realise that the alternative is physical restraint and being removed to seclusion?---
A:Depending on their mental state, yes.
Q:Of course patients do calm down in your experience when they are faced with the prospect of being restrained by a number of nurses and taken to seclusion because they know that’s the end result if they don't behave?---
A:Yes.”[55]
[55]T95, L12-31
85 When questioned about his past experience concerning various patients, it was put to him:
Q:“I understand what you're saying, that’s why I think you would accept the proposition physical restraint is seen to be as a step the last option in dealing with patients?---
A:Yes.
Q:Yes?---
A:Yes.
Q:And the first step I think you have indicated in the course of what you have just said is to endeavour to de-escalate, to talk to the patient and endeavour to talk them down?---
A:Yes.”[56]
[56]T96, L25 – T97, L2
86 The worker was further asked as follows:
Q:“But you would agree with this proposition, that doing what you did, that is to actually grab the patient without any assistance was certainly contrary to your training at Forensicare?---
A:You can say that, yes.”[57]
[57]T97, L20-23
87 Thereafter, the worker was questioned about the system to the following effect:
Q:“Q: “The first question I want to put to you is this, at the commencement of the shift, the shift leader ensures there is a comprehensive hand-over of all patients in the unit which is communicated to the oncoming shift?---
A:Yes.
Q:The system was that all clinical staff working on a unit were to be fully informed about the clinical and forensic history, presentation and assessment details of all patients on the unit?---
A:A brief overview.
Q:And the system was that all staff were to be cognisant of the current mental status, behaviour, risk and security issues in relation to all patients on the unit?---
A:Priority, yes.
Q:This is all to do with hand-over?---
A:Yes.
Q:If there was any change in a patient’s behaviour or the clinical management of the patient that was to be communicated to the oncoming shift and any other appropriate staff?---
A:Correct, yes.
Q:The shift leader of the outgoing shift was to ensure that the oncoming shift leader and staff were aware of commitments and items for communication that were recorded in the unit diary and communication book?---
A:Yes.
Q:The outgoing shift leader was to ensure the hand-over unit, drugs and administrative keys and emergency responders were handed over during the hand-over procedures?---
A:And signed off on, yes.
Q:The oncoming shift leader was to ensure drug and administrative keys and emergency responders were allocated?---
A:Yes.
Q:And emergency responders, they are the individual staff members who might respond to an emergency in another ward?---
A:Correct, yes.
Q:The shift leader was to ensure that entry was made in the clinical file of all patients in the unit that represents an accurate and descriptive reflection of the patient for the period that was reflective of the patient's individual service plan?---
A:As close as possible, yes.
Q:There is reference there to an individual service plan, what is that document?---
A:A service plan is an end of – what I can recollect, a service plan is an individual plan like of daily activities and if they are to see a doctor, if they were to go anywhere and in particular - I can recollect there was some references to a risk factor as well, I can vaguely remember that, would have to be in that area, have to be.
Q:So it was documentation which would identify what was to happen in response to a particular issue with a patient?---
A:Yes.
Q:So if he was going to go to a doctor and there was need for him to be escorted that would find its way into the individual service plan?---
A:It’s an individual diary, you could look at it that way, bio-socially yes.
Q:If there was a particular event that was identified as being relevant to the risk assessment and that required action, that would find its way into the patient’s individual service plan as well?---
A:Most definitely, yes.
For the sake of completeness I want to go back to the issue of risk assessment, 220 of the same folder, Your Honour.
Q:I’m really putting to you what the policy is of the Thomas Embling Hospital in relation to risk assessment, Mr Hollander. I’m not going to read each and every one but I want to ask you about firstly, it was the policy that every patient was to have a complete and current comprehensive risk profile?---
A:Can I say I just recollect because I - it sounds logic to me but all I can say is I can recollect, I can't say one hundred per cent.
Q:It’s only on the basis of what you recall, it’s your evidence?---
A:I’m happy to say I recollect that because it’s logical and self-explanatory, yes, I recollect on that one.
Q:So that was a policy you recollect was in force?---
A:Yes, it was a policy and procedure I can recollect there, yes.
Q:That policy was an important one?---
A:Yes.
Q:And to your knowledge was abided by during the period of time you were at Thomas Embling?---
A:Yes.
Q:The next proposition is that all patients would have a comprehensive risk assessment completed at the point of admission and that was conducted by the admitting nurse in consultation with the admitting doctor, do you recall that was the system?---
A:Yes, I can recollect that, yes.
Q:Every risk assessment which indicates an increase or change in risk was to be accompanied by a plan outlining the appropriate strategies for minimising the identified risk, do you recall that as being the policy in place and in force at Thomas Embling whilst you were there in relation to this issue?---
A:I can recollect what was called a nursing plan so that sounds very similar to what you're talking about, yes.
Q:And it says in the same area, that a copy of this plan will be found in the patient's individual service plan and clinical file, does that sound a recollection bell for you?---
A:Yes.
Q:Then in respect of reviewing risk assessment the policy was the risk assessment was to be reviewed as required at regular intervals, would you agree with that as being the policy in place?---
A:Yes, ongoing.
Q:And the review process would also be included in the weekly clinical review meetings?---
A:Yes.
Q:So the weekly clinical review meetings were clearly held weekly and they were meetings amongst the nursing staff about the patients on the unit?---
A:Yes, in particular if you were the caring nurse for those individuals because your input is vital, it's important, yes to your question.
Q:So there were weekly meetings of the staff at which weekly input was provided by the nurses attending the patient about what had happened to the patient over that particular week?---
A:Over time, yes.
Q:That formed part of the file?---
A:Yes.
Q:That information would be utilised for the purposes of patient hand-overs so that all relevant nursing staff and/or medical practitioners were advised of relevant information when they came on shift?---
A:What we’re talking about here is a compilation of the chronological changes that have taken place, so yes.
Q:All staff were to be involved in initial and ongoing campus level training in identification, evaluation and minimisation of risk issues?---
A:Sounds right to me.
Q:Was that policy in effect during the period of time you were at the Thomas Embling Hospital to your recollection?---
A:Yes.
Q:All new staff would be trained in the policies that I have been discussing with you at the hospital in the course of an induction or orientation program, so new people were told about these policies at a form of induction or an orientation program?---
A:Yes, by way of (indistinct).”[58]
[58]T106, L15 – T110, L23
88 On specific questioning about the duress alarms, the worker was asked as follows:
Q:“All staff were to have knowledge of and training in the usage of personal duress alarms, insofar as you were concerned you had training in relation to appropriate knowledge and training in the use of the alarms?---
A:Yes.
Q:So it was in effect and it was applicable insofar as you were concerned?---
A:Yes.
Q:There is an issue about the activation of the alarm, let me read 2 to you: ‘In any situation in which a staff member feels their safety or another individual’s safety is compromised the personal duress alarm is activated by pressing the large red button for two seconds’, so let me ask you about the first part of it and I will read it again: ‘In any situation in which a staff member feels their safety or another individual’s safety is compromised a personal duress alarm is activated’, firstly, is that the policy of the hospital in respect of personal duress alarms?---
A:I can’t recollect that but what you’re talking about, the activation of it, I go along with that, okay.
Q:You accept the proposition that in 2001 a personal duress alarm was activated by pressing a large red button for two seconds?---
A:Can I introduce the possibility – have they got the same duress alarm as they have now? A duress alarm is a duress alarm, whether they have changed it or not I don’t know, whether it’s red or not or two black or two green I can’t recollect that, I would go along with pushing it and holding it down for two seconds.
Q:The document indicates the alarm was activated by pressing a large red button on the duress alarm, you have spoken about pressing two button simultaneously, this appears to be different?---
A:It is to me, that’s why I can’t - all I know is that I can - all I know is that by pushing two buttons simultaneously for a period of seconds would activate it, I can’t - if that’s what the document is saying the policy and procedure of 2000 then - I know what you’re saying.
Q:I’m instructed this was the policy in place at the time of the accident in February 2001?---
A:There was a red button there, was there?
Q:I believe so on the basis of my instructions, yes?---
A:If there is a red button there providing it is the same duress alarms they are using then I would say yes to that.
Q:Would you agree with the proposition that the policy at the hospital was that if a staff member felt their safety or another individual's safety was compromised then the alarm was to be activated?---
A:Yes.
Q:And there was a policy that dealt with acute psychiatric emergencies, 214, 215, Your Honour. Before I go to this document, Mr Hollander, you would agree that the event of 17 February 2001 was something that would be classified appropriately as an acute psychiatric emergency?---
A:Yes.
Q:The policy in respect of the hospital in relation to managing those emergencies was firstly that the patients were to be managed by unit staff with the assistance of unit response members, would you agree that was the policy of the hospital at the relevant time?---
A:Can you repeat that?
Q:I will read it again, dealing with acute psychiatric emergencies on the unit, so effectively at Argyle, firstly psychiatric emergencies were to be managed by the unit staff with the assistance of the emergency response members, do you agree that was the policy of the hospital in relation to managing an acute psychiatric emergency?---
A:It sounds right to me, I’m sorry, I can’t - - -
Q:If you can’t remember that’s okay?---
A:I can’t remember but it sounds right to me.
Q:The second aspect of the policy was that the personal duress alarm was to be activated in the event of an acute psychiatric emergency, do you agree that was the policy?---
A:Yes.
Q:That was certainly the training?---
A:Yes.”[59]
[59]T111, L8 – T113, L20
Re-examination of the Worker
89 In re-examination, the worker was asked:
Q:“You have described patient X in your knowledge as being a violent person, known to be violent?---
A:Yes.
Q:Or potentially?---
A:Yes, potentially.
Q:Did that figure at all in the events prior to you being involved in the incident of 17 February 2001?---
A:It’s foremost, you have to be aware of those potential volatile patients and so it has to be close, those thoughts.
Q:And is there any way of predicting these outbursts of violence in advance?---
A:In the bio psycho-social, on those form you will see there is - the indications is there are onsets, what pushes buttons with the individuals so yes, there are, there can be.
Q:Were you aware of any in respect of patient X?---
A:No, definitely not, the contrary, actually I thought he was somewhat - he was compliant, placated and I was able to feel very confident with him.”[60]
[60]T116, L5-21
90 With respect to the physical layout of the Argyle Unit, the worker was asked as follows:
Q:“Mr Hollander, you were asked questions about the Argyle Unit and the design, and you said it looks good?---
A:M’mm, yes, it looks good, it is good.
Q:Then you went on to say something about the split level design not seeming right?---
A:Yes.
Q:What did you mean by that?---
A:The right environment for the right people, I question that. Take the patients away and then visit the place, it’s quite homely so it has as the gentleman suggested an ideal, cosy place - yes, it is, very nice.
Q:And you were commenting on the drop floor?---
A:Yes.
Q:In terms of a working environment, and what did you have to say about that?---
A:I’m not in agreeance with a drop floor in an acute area, that is the important distinction.
Q:What’s your reason for that, being at the coal face as it were?---
A:I don’t like any steps at all in any of those places.
Q:Why is that?---
A:For exactly - because I - I fell down the steps in an altercation with a patient, if it was flat the fall would have been different, I wouldn’t have ended up with three broken ribs and a punctured kidney.”[61]
[61]T118, L8-29
The evidence of the Dispensing Nurse
91 As at 17 February 2001, Nurse Walker had been a registered Psychiatric Nurse for approximately fifteen years. He was performing the dispensary function from the dispensing area located in the Argyle Unit and specifically, inside the medication room. Those duties had been allocated to him by the Assistant Nurse Unit Manager, Mr Thompson.
92 Upon taking up his position in the medication room, Nurse Walker prepared the relevant medication as stipulated by a treatment sheet. He stated:
“And then we have cups, little medication cups where we put medication into the cup and there is a jug of water where patients are able to pour water into a cup so they are able to take the medication. … .”[62]
[62]T388, L26-30
93 Nurse Walker had no specific recollection of his actions that day but it was his normal practice to express a sort of greeting or “Good morning” and ask the patient how he is.[63] That form of interaction assists him in relation to evaluating the patient at that particular point in time:
“I guess depending on their response it can give you an indication as to how their mental state is or what demeanour.”[64]
[63]T390, L23-26
[64]T390, L30 – T391, L1
94 His specific recollection of the patient that day was to the effect:
“I think he might have been a little gruff or not happy about probably taking the medication.
…
Unfortunately the patient had a chronic psychotic illness so we were dealing with someone who to my understanding has had a treatment resistant illness.
…
It was a fairly similar presentation (to how he presented normally).”[65]
[65]T391, L4-16
95 With respect to Patient ‘X’, Nurse Walker stated he:
“Didn’t have any problems about being allocated a dispensing nurse that day.”[66]
[66]T391, L29
96 When asked as to who performed the act of pouring the water from the jug, he replied:
“It can be either the nurse or the patient.”[67]
[67]T393, L11-12
97 As to whether he would allow a patient to pour his own water, he stated:
“… it might speed up things, [if I poured] … .
I guess we’re trying to let the patients do as much as they can rather that I guess – in terms of a therapeutic process getting people to do as much as they can rather than doing it for them.”[68]
[68]T393, L20-31
98 Prior to the incident occurring, he had no concerns about the location of the jug itself.[69]
[69]T394, L4
99 When he was in the process of dispensing the medication, the surgery door was locked but the hatch was pulled down in order to dispense the medication.[70]
[70]T395, L8-11
100 His understanding of the purpose of the barrier was that it –
“… prevents patients from walking in, in a disorganised manner so it provides a bit of organisation and yes, prevents patients wandering in when they really shouldn’t be there.”[71]
[71]T395, L19-23
101 Nurse Walker did not have any concerns for his own personal safety regarding the efficacy of the hatch on that particular day.[72]
[72]T395, L26
102 As to the incident leading to the attempted restraint, he stated:
“It’s a long time ago, all I can recall is he picked up the jug of water and pushed it or threw it into my face, it was more of a glancing blow.”[73]
[73]T395, L29-31
103 As a result of the assault, he was in a state of shock and took some steps backwards. When he came out of the dispensary, he found the worker and the patient in the sunken lounge scuffling, “I think they were both grabbing each other from what I recall”.[74]
[74]T396, L9-22
104 Further, he stated he had received training in relation to the management of patient aggression as follows:
“Q:“What did you understand was the training in relation to dealing with the patient who had in this instance just undertaken the action the patient had with respect to you?---
A:The process would be to sound a duress, staff carry a duress alarm system.
Q:And what would happen after that alarm was sounded?---
A:The primary responders from the other units would attend the location of the duress - where it sounded from.
Q:People having responded to the alarm, what did the system then involve those people in doing in the event the patient was still causing difficulty?---
A:It would be the most senior nurse on duty usually, would organise to get a team of staff together and if required to restrain the patient.
Q:Before restraint was undertaken was any step taken as part of the system to try and deal with the patient verbally rather than physically?---
A:Yes, de-escalation is – that’s correct, yes, after an assault in a situation it might be yes, bit difficult to do that because they have already - yes.
Q:So to what extent is what you do dependent upon the state in which the patient is?---
A:That's right, I mean yes, that is correct, you don’t jump in and restrain a patient, you sort of seek their compliance, tell them what you’re going to do.
Q:With respect to the training you had received what does one say about whether a nurse ought engage a patient without waiting for physical assistance?---
A:It’s not the protocol that we’re trained in and the policies and procedures of doing that.”[75]
[75]T397, L5 – T398, L3
Cross-examination of the Dispensing Nurse
105 Under cross-examination, Nurse Walker agreed it was a full jug of water that had been thrown at him.[76]
[76]T400, L10
106 Further, he was of the view that the worker had restrained Patient ‘X’ to prevent the patient from further assaulting staff.[77]
[77]T400, L20
107 He agreed that in an earlier statement, he stated:
“From what I know I do not believe that Paul contributed to his injuries in any way as he was performing a restraint caused by the actions of a patient.”
108 However, under further questioning, Nurse Walker stated:
“I think in hindsight I probably wasn’t able to make that statement.”[78]
[78]T406, L1-5
109 When asked whether he had changed his view as to whether the worker had contributed to his own injuries, he stated:
“I think in restraining a patient on his own that’s something we’re taught not to do.”[79]
[79]T407, L16-18
110 Further, he stated:
“If we restrain – when we restrain patients it’s with a team of nurses, not individually.”[80]
[80]T407, L24-26
111 Further, he conceded that the particular patient did not have a good rapport with himself.[81]
[81]T410, L29
112 Additionally, it was his understanding that the patient was treatment resistant.[82]
[82]T411, L6
113 Nurse Walker agreed it was his decision to place the jug on the ledge on that day and he could not recall whether this was different from his practice on any other day.[83]
[83]T411, L25-30
114 When asked whether a nurse could be criticised for undertaking assistance by retraining the patient in the circumstances, he replied:
“It’s against the training we have.”[84]
[84]T412, L28
Re-examination of the Dispensing Nurse
115 In re-examination, Nurse Walker stated that it would have been very difficult for the patient to get through the door to cause further injury to him after he had initially thrown the jug, because it was locked.[85]
[85]T413, L11-16
System of work: attempted restraints
116 It can be distilled from the above testimony that the system involved the following elements:
(a) The worker had an extensive induction at Thomas Embling and ongoing meetings with respect to processes contained in the M4 Training Manual;
(b) The worker was competent to make a clinical assessment of Patient ‘X’ before and during accompaniment to the dispensing window;
(c) The dispensing nurse was similarly competent to make a clinical assessment of Patient ‘X’, particularly with respect to the desirability of allowing access to the plastic water jug;
(d) Allowing the patient to pour his own water was therapeutic and consistent with the overall objectives of the institution;
(e) Neither nurse was alerted to the need to take specific precautions with respect to the patient’s behaviour;
(f) The dispensing nurse was aware of the patient’s “dislike” of him, but was not alerted clinically to the insipient outburst and there was no evidence of prior violence directed towards him by Patient ‘X’;
(g) Although there was general evidence of “treatment resistance”, there was no evidence that Patient ‘X’ had either refused to take medication whilst at the dispensing unit or had acted inappropriately at that time, in the past;
(h) The worker was aware of the basic tenet of his training that physical restraint should not be attempted without assistance, unless, it would appear, that a colleague or a patient was in “extremis”;
(i) The dispensing nurse was not in “extremis” in the sense that the assault had been completed without a realistic prospect of furthering that activity;
(j) The worker had developed a professional rapport with the patient and had “confidence enough” to bear hug the patient from behind, with the belief that he could “talk him down” by whispering into his ear, “take control, take control”;
(k) The worker was aware that the M4 protocol and his training required a completely different approach consisting of sequentially:
(i) verbal de-escalation without physical restraint
(ii) sounding the alarm
(iii) isolate the area of patients
(iv) await assistance.
117 In my view, there was no breach with respect to the worker’s training or pursuant to the M4 Manual, which was causative of the worker’s injuries.
Safe place of work: stairs in vicinity of sunken floor
118 There was uncontradicted evidence that the sunken floor was necessary because of the location of offices of allied health workers in the roofline of the Argyle Unit. In the sunken floor area, there was a games room consisting of a billiard table with ancillary equipment. If this area was on the same level as the dispensing cabinet, patients could gain access to the offices via the exposed beams in the ceiling. It was said that the introduction of the sunken floor introduced a domestic feel to the unit and broke up the large expanse of an institutional type lounge area which the defendant was endeavouring to avoid.[86]
[86]Tozer – T324, L20 - 26
119 With respect to having the steps near the dispensing unit, there had been considerable consultative processes undertaken both with occupational health and safety committees and with the relevant unions. It would appear that the only matter of real concern was the placing of a balustrade on the steps outside the nurses’ station, with no further action being considered necessary near the dispensing unit.[87]
[87]Thompson – T195, L8 – 11; T196, L1-6
120 Further, the location of similar steps was not identified as a universal problem requiring action.[88]
[88]Tozer – T382 – 383
121 In my view, there was no breach of duty on the part of the defendant in locating the steps close to the dispensing area.
System and place of work: juxtaposition of jug and opening to dispensing unit
122 Defence counsel concede that there was a foreseeable risk of harm by the placement of the jug on the ledge which was not insignificant. No issue is taken that the foreseeable harm includes the type of harm that was suffered by the worker in the circumstances of this case.
123 The defendant submits that the response to the foreseeable risk of harm consists of the clinical assessments made by the dispensing nurse and the escorting nurse (Nurse Walker and the worker) and ultimately, the judgment of the dispensing nurse (Nurse Walker). Also involved is the decision of the managing nurse, Mr Thompson, to allocate the duties to Nurse Walker in circumstances where it was known that there was not a good relationship between Patient ‘X’ and Nurse Walker. Of particular relevance is that Nurse Walker himself had no particular concern that he was allotted those duties on that particular day.[89]
[89]T391, L27
124 Although both parties referred to competing evidence as to the reasonableness of placing the jug on the ledge in the circumstances of this case, ultimately it is a jury question rather than a matter for experts. Once it is conceded that the system of allowing the dispensing nurse to make a judgment call with respect to the placement of the jug on the ledge involves a foreseeable risk of injury occurring which is not insignificant, the question must come down to whether, in all the circumstances, the response to that risk was reasonable.
125 The risk of harm is to be balanced with the therapeutic benefit of allowing the jug to remain in place. The first part of the equation relates to the duty owed to the worker and the second, to the duty owed to the patient.
126 The type of harm that was foreseeable is not limited to the actual sequence that occurred in this case.[90] One could imagine a patient using the jug of water as a weapon directed towards either the dispensing nurse or the escorting nurse. The type of harm may not be a glancing blow drawing blood, as occurred in this case, but a more serious head injury to either individual identified. If the system had been designed and enforced that the jug remains within the dispensing unit and the dispensing nurse pours the water into paper cups or plastic cups of significantly less mass, it would be hard to imagine how the therapeutic disadvantage would be great. No evidence was led that it would be significant.
[90]See Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
127 This issue, it seems to me, is perhaps best crystallised in the cross-examination of the general manager, Mr Tozer, concerning the considerations undertaken by the defendant with respect to the juxtaposition of the dimensions of the opening in the cubicle with the placement of the jug, to the following effect:
A:“I could reach through all of those I would have thought so it’s where do you draw the line? We considered the issue and drew the line where we did.
Q:What issue did you consider?---
A:The safety of the nurse in the area.
Q:And did that consideration of that particular issue concentrate on the safety of the nurse or the patient’s wellbeing in the home environment for the patient?---
A:Both obviously.
Q:And it wasn’t enough for the nurse, was it?---
A:Not in this instance clearly.
Q:And other things could have been done for example, the jug could have been removed and a weapon thereby destroyed?---
A:Yes.
Q:You thought that was dangerous, that jug being there, didn't you?---
A:Not so much dangerous as unnecessary.
Q:The note I had of what you said when asked about the jug is you said it was inherently risky, that's correct, isn't it?---
A:Yes.
Q:And the proper thing to do would have been to take that risk away by removing the jug?---
A:We could have done that, yes.
Q:Not only could they have done it, they should have done it because it was inherently risky, yes?---
A:Yes.
Q:And a simple and effective way of getting over that problem was one that had been used in the past, that is plastic cup with the medication in it?---
A:Paper cup.
Q:Yes, or a paper cup and a paper cup with water in it and that wouldn't detract from your philosophy of making sure the patient was in a homely environment, would it?---
A:Clearly - - -
Q:Does it?---
A:Well, it does, but it's a degree of the continuum thing again, I don't believe it was that significant, the benefit to the patient's involvement in pouring their own water was not - I don't believe was that significant so removing the jug is not an enormous price to pay.”[91]
[91]T365, L16 – T366, L22
128 Mr Tozer was asked to consider whether the jug, as a matter of policy should have been removed, and he replied:
A:“… you take away too much risk and staff being injured. So we’re splitting hairs, jug or not a jug, a lighter weight jug, heavier jug, a small one, big one. I mean this is …
Q:Where does the worker’s safety sit in all of this, what duties do Forensicare think they had in respect of worker's safety?---
A:We have the same responsibility as any other employer and our workers are involved in the assessment of risk at all times.
Q:I’m sure they are, but they are not experts, are they, you call in experts to say this is the way it should be done?---
A:Psychiatric nurses are trained in risk assessment and that’s part of what they do, this is a classic risk assessment issue and at any stage any nurse could say the current way we’re dispensing medication is a risk, we need to improve it.”
HIS HONOUR:
Q:“If Mr Walker of his own volition had removed that jug because he perceived there was a bit of friction, could he have replaced the jug and not been criticised for it?---
A:Absolutely. I would very much doubt he would be criticised for it.
Q:And you say that’s within his power of assessment?---
A:Yes.”
MR RATTRAY:
Q:“Even without leaving it to Mr Walker it was a situation where anybody on a supervisory level at the Argyle Unit could have said someone better have a look at this because leaving the jug there is inherently risky?---
A:They could have and should have.”[92]
[92]T367, L1 – 27
129 It could be said that this ultimate answer involves a matter of hindsight, which I accept. However, looking at the matter prospectively, it appears to me that the risk of placing the jug in the position where it was, given the geography and the other circumstances already alluded to, that the therapeutic advantage of leaving the jug there was not “an enormous price to pay” when balanced with the risk undertaken.
130 In all the circumstances, and on balance, I consider that the defendant was in breach of its duty to the worker in allowing the dispensing nurse to make the clinical judgment as to whether to place the jug on the ledge in all the circumstances. It follows also that the defendant is in breach of Regulation 15 of the Occupational Health and Safety Manual Handling Regulations 1999, in that it had failed to reduce the risk of musculoskeletal harm as far as practicable.
Factor X
131 The nature of the exercise to be undertaken by the Court in evaluating Factor X is similar to the determination of an entitlement to contribution under PART IV of the Wrongs Act 1958 or of contributory negligence under PART V of that Act.[93]
[93]See Esso Australia Limited v Victorian WorkCover Authority (2001) 1 VR 246 at 253
Negligence on the part of the employer
132 It is conceded that the employer owed the worker a non-delegable duty of care. The duty is identical to that of the defendant, in that it must take reasonable precautions to provide a safe place of work and a safe system of work. However, the content of the duty will vary. There is no evidence that apart from providing the training referred to at Transcript 44 – 45, that the employer visited the hospital to inspect the Argyle Unit and in fact the worker deposed that “he was not aware, I didn’t see any”.[94]
[94]T73, L6 – 14
133 There was no reason why the employer could not make itself aware of the system of the jug being placed on the ledge at the time of the dispensing of medicine and recommend appropriate responses. The plaintiff concedes that the employer ought to bear up to 25 per cent of the responsibility, whilst the defendant submits its contribution ought to be in the vicinity of 30 per cent. The plaintiff submits that the defendant was said to be at the “leading edge” in respect of psychiatric hospitals and psychiatric care. I accept that this was the tenor of the evidence.
134 Doing the best I can, I consider that 25 per cent is the appropriate contribution.
Negligence of the worker
135 It is clear that the worker acted outside the system of work laid down by the defendant. To the extent that he acted intuitively or on impulse, it can be argued that such actions do not sound in contributory negligence and have to be taken into account by the defendant when designing a safe system of work.[95] In the circumstances of this case, the worker was well trained and used to dealing with patients of the type of Patient ‘X’ over many years. The urgency of the assault had been reduced, if not completed, by virtue of the protection to the dispensing nurse by the cubicle door. In any event, the worker stated he was confident to employ his own system of grabbing the patient from behind and whispering into his ear “take control, take control” in a clear decision to substitute his own system for that of the defendant. I do not accept that he was carrying out his duties in accordance with the system laid down by the defendant and I note that the defendant accordingly submits he should bear a 30 per cent responsibility in respect of the injury sustained by him. For the reasons already referred to, I do not accept the plaintiff’s submission that the contribution is zero.
[95]McLean v Tedman (1984) 155 CLR 306
136 In all the circumstances, I consider that his contribution is of the order of 25 per cent.
Negligence of the Defendant
137 Although the defendant had embarked upon an extensive consultative process with respect to the system and place of work, its judgement with respect to the placement of the jug was such that its departure from the acceptable standard would be roughly equivalent to twice that of the worker, and or the employer, such that its contribution is 50 per cent. It follows that Factor X is 50 per cent.
138 There will be judgment for the plaintiff. I will hear the parties as to any consequential orders.
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