Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Ruth Buggy v Hunter Area Health Service [2003] NSWIRComm 462 PROSECUTOR: Inspector Ruth Buggy PARTIES : DEFENDANT: Hunter Area Health Service FILE NUMBER: IRC 3712 of 2002 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - prosecution under section 15 of the Occupational Health and Safety Act 1983 - acute psychiatric hospital - early plea entered - failure to maintain safe hospital emergency communication system - duress alarm system breakdown - assault - defendant guilty of charge - penalty imposed - reduction - moiety to prosecutor - defendant to pay prosecutor's costs as agreed or assessed in accordance with the Court's Rules LEGISLATION CITED : Occupational Health and Safety Act 1983 Mental Health Act 1990 (NSW) CASES CITED : WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245 WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in the Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 HEARING DATES: 12/08/2003 DATE OF JUDGMENT: 12/19/2003 PROSECUTOR: Ms PF Lowson of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr BD Hodgkinson SC with Mr ML Shume of counsel SOLICITORS: Sparke Helmore JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 19 December 2003 MATTER NUMBER IRC 3712 OF 2002 INSPECTOR RUTH BUGGY v HUNTER AREA HEALTH SERVICE Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 This matter and the prosecution in Matter Number IRC 3711 of 2002, concerned with alleged deficiencies in the defendant's system of work, were listed for defended hearing for two weeks in December. The hearing was vacated after advice was received that a plea would be entered. When the matters came on for hearing, consent orders seeking the dismissal of the prosecution in Matter Number IRC 3711 of 2002 were filed and the application for orders in this matter were amended by consent, whereupon a plea was entered. The charge was brought under s15 of the Occupational Health and Safety Act 1983 ('the Act'). 2 Various documents were tendered on the prosecution case and the defendant called evidence from Ms Judith Kennedy and Professor Vaughan Carr. 3 The amended charge was: DID FAIL To ensure the health, safety and welfare at work of its employees and in particular, Catherine Le Brocq, Valda Miller and Ruth Gregory, contrary to Section 15(1) of the Occupational Health and Safety Act, 1983, in that the Defendant failed to maintain the hospital communication system in a condition that was safe and without risk. Specifically: (1) The minicom system was rendered less effectual as the PA system and 7999 telephone system were not functioning. (2) The PA system and the 7999 telephone system were not functioning. Particulars: On 3 July 2000, the said employees: (i) worked in the Bluegum Unit in the Thwaites building of the James Fletcher Hospital (ii) performed nursing duties caring for 17 patients with psychiatric illnesses, including patient TC (iii) were subjected to aggressive behaviour by TC (iv) operated their personal duress alarms to notify a code red emergency situation (v) were unable to operate the PA or 7999 system to notify the code red emergency situation (vi) had to restrain TC and in so doing sustained injuries which resulted in two of the nurses requiring a short period of leave. 4 The agreed statement of facts provided: 1. The informant is an inspector duly appointed under Division 1 of Part 5 of the Occupational Health & Safety Act, 2000 (NSW) and empowered under section 106(1)(c) of the said Act to institute proceedings in the within matter. 2. The Defendant, HUNTER AREA HEALTH SERVICE is a statutory body corporate pursuant to section 17 of the Health Services Act, 1997 (NSW) having its principal office at Lookout Road, New Lambton Heights in the state of New South Wales. 3. At all material times the defendant operated an acute psychiatric hospital (the hospital), James Fletcher Hospital at 72 Watt Street, Newcastle in the state of New South Wales. 4. At all material times the defendant employed nursing and other staff at the said hospital. 5. At all material times the defendant employed the following persons, all with over 20 years nursing experience: a) Catherine Le Brocq, 48 year old registered nurse who is approximately 5ft 9 tall; b) Valda Miller, a 46 year old registered nurse who is approximately 5ft 4 tall; c) Ruth Gregory, a 50 year old registered nurse who is approximately 5ft 4 tall; and a number of other staff. 6. The James Fletcher Hospital includes a number of facilities/units which provide inpatient and outpatient services. 7. The Thwaites Building is one of these facilities and is located within the James Fletcher Hospital grounds. It has a 64-bed capacity and comprises three acute psychiatric units, an admission unit and an intensive care unit. 8. The acute psychiatric units, within the Thwaites Building, are known as 'Acacia', 'Bluegum' and 'Huon'. The psychiatric intensive care unit (PICU) within the Thwaites Building is called 'Waratah'. The admission unit is called the 'Psychiatric Emergency Centre' (PEC). 9. At all material times on 3 July 2000, the Bluegum Unit: (a) had a capacity of 20 patients. (b) admitted acute psychiatric male and female patients in accordance with the Mental Health Act 1990 (NSW). Patients are admitted from the Lake Macquarie catchment area. Patient illnesses included bi-polar disorders, chronic schizophrenia, dementia, depression with psychosis, paranoid schizophrenia, severe depression, disassociative disorders, personality disorders and schizophrenia. (c) was an open unit, meaning that patients could move freely between the Bluegum, Huon and Acacia units, but not Waratah (PICU) and PEC. 10. At all material times the work of the said employees involved caring for patients suffering from the illnesses identified in paragraph 9(b). These patients can show signs of self harm, harm to others, self-defeating behaviour, suicidal ideation, transient psychotic symptoms, poor regulation of emotions with intense anger including abusive and aggressive behaviours, lability including depression and anxiety, intense feelings of emptiness and despair with associated clinging and demanding behaviours. 11. On 3 July 2000 there were 17 patients in the Bluegum unit. 12. On or about 14 June 2000 patient TC was admitted to James Fletcher Hospital. Patient TC reported depressed mood, low energy, poor concentration, hypersomnia and suicidal thoughts. On admission TC was of a heavy build and obese. 13. A "Code Red" is a non-medical emergency situation where additional staff are immediately required to gain control or restore order. 14. At all material times a Code Red could be called by: (a) operating a personal duress alarm ("PDA"); or (b) operating a fixed duress alarm ("FDA"); or (c) operating the Public Address system ("P A system"); or (d) dialling 7999 on a telephone. 15. At all material times all nurses wore PDAs. 16. When activated, the PDA and FDA were displayed on the mimic panels and a low pitch continuous aural tone was emitted. The mimic panel would display for the PDA "Code Red [name of ward] [the number of the duress alarm being worn]". The mimic panel would display for the FDA "Code Red [name of ward] [location of FDA] eg, Bluegum Nurses Station. In the Thwaites Building there were 7 mimic panels each measuring 1 metre long by 20 centimetres wide. 17. The PA system was operated by microphone. Microphones were located in the nurses stations and reception area. The PA system could be heard throughout the Thwaites Building. Individual staff could use the PA system to call for assistance, for any emergency situation. Alternatively a staff member, who was aware that another staff member required assistance, could use the PA system to advise of the code and location. 18. The 7999 system linked a staff member directly to the PA system. This allowed the staff member, using the telephone, to transmit messages as referred to in the paragraph above. 19. On every shift a response team was designated on the daily disposition sheet. These persons were located in different units within the Thwaites Building and Boronia unit. They were required to respond immediately to a Code Red. 20. On the (sic) 3 July 2000 a routine weekly test had been performed on the PA and 7999 systems. This test identified that there was a fault within the system. 21. At all material times David Chegwidden ("Mr Chegwidden") was employed by the defendant as an engineer in charge of trade services. He had been employed at the James Fletcher Hospital since 1993. 22. At approximately 10.30am Mr Chegwidden was informed that the PA system was not functioning in the Thwaites Building. Mr Chegwidden immediately attended to the problem. He obtained the assistance of Mr Ken Lott, an electrician, employed by the defendant. They were unable to identify and correct the fault. Mr Chegwidden arranged for AVE Communications to attend. They arrived at approximately 1.30pm and were unable to diagnose the problem. 23. AVE Communications returned the following day identified and repaired the fault, namely a corroded cable connection which was located under the desk in the reception area in the Thwaites Building. The only way to identify the fault was to test each circuit and then trace the wire being tested to its next connection. As at 3 July 2000 the defendant did not have technical information including circuit diagrams for the system. After this incident Mr Kerry Sutcliffe of AVE Communications suggested that the system be upgraded. The defendant engaged Mr Sutcliffe to carry out the necessary changes which were completed in October 2000. Technical information and circuit diagrams would have offered little assistance in the diagnosis of the corroded cable connection given that each wire had to be traced to eliminate that wire. 24. The Bluegum unit had three registered nurses on duty on the afternoon shift (2.30pm to 11pm), Nurses Gregory, Miller and Le Brocq. 25. Some time after 7.00pm and before 7.35pm TC entered the nurses station in the Bluegum unit. She threatened Nurse Le Brocq with words to the effect; "You'll never get to Bermuda, you'll be dead" and approached Nurse Le Brocq with a thin strip of leather in her hands. She held it up and attempted to wrap the leather around Nurse Le Brocq's neck. Nurses Miller and Gregory were standing next to Nurse Le Brocq at the time of the threat and intercepted TC. All three nurses activated their PDAs. 26. As a consequence of the PA system not being operational Nurses Gregory, Miller and Le Brocq did not know whether, or when, the duress alarm message on the mimic panel had been sighted. 27. If the PA system had been operating it may have been activated by Nurse Miller prior to her assisting in the restraint of the patient, thus ensuring that staff: (a) had been alerted to the Code Red; and (b) knew exactly where Bluegum Unit and the Code Red incident was occurring. 28. At or about 7.35pm the receptionist Catherine Brougham ("Ms Brougham") reacted to the mimic panel which displayed a message identifying a Code Red in Bluegum unit. 29. Scott Davis ("Nurse Davis"), the nurse manager in PEC, heard the mimic panel and went directly to the reception area where Ms Brougham and the mimic panel were located. He directed Ms Brougham to phone the Acacia unit and tell them there was a Code Red in the Bluegum Unit. He then ran to the Huon unit to get staff to accompany him to the Bluegum unit. When he arrived, at the Huon unit, the response team member had reacted to the mimic panel and had gone to the Bluegum unit. He then went directly to the Bluegum unit. 30. Justin De Las Heras ("Nurse De Las Heras"), registered nurse, heard and then observed the code red on the mimic panel in the Acacia unit. He immediately responded and arrived at the nurses station of the Bluegum unit in 25 seconds. He was the first response team member to arrive. When he arrived the incident was still taking place. Minimal force was then required to subdue the patient. 31. Robert Argyle Woods ("Nurse Woods"), registered nurse, responded to the mimic panel and attended from Huon unit. He arrived at the nurses station of the Bluegum unit in approximately 30 seconds. When he arrived the patient had been subdued. 32. When Nurse Davis arrived the situation was under control. 33. In subduing TC Nurse Miller sustained a black eye and bruising to the right cheek, resulting in her being away from work for four days. 34. In subduing TC Nurse Gregory sustained lower back strain, resulting in her being away from work for three and a half days. 35. Nurse Le Brocq sustained superficial abrasions to her face, neck and left hand. Nurse Le Brocq required no time off. 36. There is no direct evidence as to the period of time between the operation of the duress alarms by each of the three nurses and the first observation of the mimic panels message by Ms Brougham or the nurses in Huon and Acacia units. While it is possible that there was some short delay between the activation of the duress alarms and the mimic panels message being activated and observed, it is equally possible that the mimic panels message was activated and observed immediately after activation of the duress alarms. 37. After 3 July 2000 eight more mimic panels were installed and the aural tone was increased. 38. In October 2001 the PDAs were replaced with a new system called the Ascom Teleprotect system. This is an infra red and radio system controlled by computer which is located in the reception area of the Thwaites Building. This system comprises: (a) a transmitter worn by all staff within the Thwaites building who are not members of the response team. It has three methods of activation; by push button, pull cord and person down. When the person down function is activated a noise is emitted. (b) a transceiver worn by all members of the response team. It has all the functions of the transmitter and has the ability to receive alarms from all other units. When a code red is called the transceiver emits a noise and displays the location of the person whose alarm has been activated. There is also a two-way speech function available that allows communication between the response team members. (c) fixed wireless alarms located throughout the Thwaites building. (d) When a code red is activated a plan of the building is displayed on the computer screen, located in reception, indicating, in the case of a personal transmitter/transceiver, the last infra red locator area or in the case of a fixed wireless alarm the exact location where it was activated. At the same time members of the response team are alerted by a noise emitting from the transceiver. 39. The PA and 7999 systems continue to be part of the emergency procedures. 40. On 3 July 2000 the defendant failed to ensure the health, safety and welfare at work of its employees and in particular, Catherine Le Brocq, Valda Miller and Ruth Gregory, contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that the said employees, whilst at work were placed at risk by : (a) The defendant failed to maintain plant, to wit, the hospital communication system in a condition that was safe and without risk: (i) the minicom system was rendered less effectual as the PA system and 7999 telephone system were not functioning. (ii) the PA system and the 7999 telephone system were not functioning. 41. The defendant has the following antecedents: Date of Offence Nature of Offence Section of Act Date of Conviction Penalty 6 May 1996 Emission of gaseous substance from a boiler on the 8th floor of Newcastle General Hospital S 15(1) of the Occupational Health & Safety Act, 1983 18 June 1999 (IRC No 2261 of 1999, Peterson J) $25,000.00 12 July 1996, 26 February 1997 and 9 April 1997 Employees in the operating theatre exposed to inhalation of glutaraldehyde fumes/vapours from sterilisation procedures at John Hunter Hospital S 15(1) of the Occupational Health & Safety Act 1983 13 June 2000 (98/1363, CIM Miller) $15,000.00 5 As the defendant has a record of two prior convictions, the maximum penalty for this offence was $825,000. 6 The evidence showed that the defendant operates a number of facilities and services, including the acute psychiatric unit at which the events here in question occurred. It employs nearly 700 full-time equivalent staff in the provision of these services. Both Ms Kennedy and Professor Carr described the treatment which may be required by those to whom the provisions of the Mental Health Act 1990 (NSW) apply and the risks which such patients may pose to themselves and others. The result is a range of strategies designed and implemented by the defendant to manage those risks. 7 The processes adopted at the Psychiatric Emergency Centre, on presentation, admission and treatment were described, as well as the discharge process, for both voluntary and involuntary admissions. The training provided for staff was outlined, as was the operation of the communication system here in question. 8 The evidence showed that on 3 July, a breakdown in two components of the system was detected at around 10 am, in a routine weekly check of the system. The defendant's records showed that the system was fully functional the preceding day. Staff were alerted to the problem with the system. The defendant's site engineer, Mr Chegwidden, was unable to identify and rectify the fault. By about 1:30pm, the contractors engaged for the maintenance of the system had attended, but were also unable to identify the fault that day. On the following day, a corroded wire was located and replaced. There was no evidence as to the nature or cause of the corrosion. 9 It was on the evening of 3 July that the events in question occurred. The evidence was that the three nurses involved were each able to activate their personal duress alarms, despite the problems with the other two components in the system, the PA and 7999 phone systems. The alarms were recorded on the minicom system, which emits both sound and light when activated. The parties were unable to establish that there had been any delay in response to the alarms, as a result. If there was any delay, given the evidence of the response to the alarm raised, it can only have been of the shortest duration. 10 Under the defendant's system, five persons were designated to each shift as responsible for responding to any code red emergencies. The subsequent investigation showed that on this occasion, the first person responded within 25 seconds of becoming aware of the minicom alert and arrived while the patient was being subdued without difficulty. The second arrived within 30 seconds of becoming aware of the alarm and when he arrived, the patient had been subdued. In all, five persons responded. 11 Under the applicable policies, the receptionist was obliged to use the PA system to announce the emergency, upon becoming aware of a duress alarm being activated. Given that the PA system was not functioning, the receptionist gave other wards telephone advice of the code red. 12 The evidence showed that there had been some problems experienced by the defendant with the operation and maintenance of each of the three aspects of the communication system prior to this incident. There had been a WorkCover improvement notice issued in 1999. After the incident, there were further alterations to the minicom system and subsequently, the system was replaced, as was the PA system. The new system had features not available on the minicom system, including a 'man down' function; direct advice to the members of the response team of a duress alarm having been activated and identification of the location of the person who had activated the alarm. 13 Professor Carr gave evidence about the diagnosis and treatment which the patient involved had received, as well as the nature of her illnesses and the problems which they presented for diagnosis and treatment. His evidence showed that the illness in question, borderline personality disorder, presented particularly difficult problems, especially when treated in acute general psychiatric inpatient units, for extended periods. 14 These included the escalation of disruptive, aggressive and self-destructive behaviours; reduction in healthy behaviours; divestment of responsibility for the patient's behaviour and attribution of responsibility to staff; increase in psychopathological symptoms; attribution of negative self image to staff and resulting hostile stance towards them; the playing off of staff against each other as the result of an inability to integrate positive and negative qualities of the patient or others and the consequences of staff reacting in a negative way, by being dismissive, rejecting or critical, or as the result of disagreements arising over clinical management of the condition. 15 Other problems could result, including the difficulty of determining whether there were other disorders present, which required distinct treatment; the patient, even unconsciously, exploiting any lack of unanimity as to treatment amongst staff, leading to a cyclical creation of further division, with adverse consequences for the patient's mental health. Drug abuse and even treatment by particular drugs, can also have disinhibitive effects on patient behaviour, increasing the likelihood of aggressive or violent behaviour towards people and property. Abstinence from treatment can also lead to periods of withdrawal symptoms, further increasing the likelihood of aggressive or violent behaviour towards people and property. 16 It was not Professor Carr's evidence that any actions of the nursing staff involved in the treatment of the patient had contributed to the incident here in question. The patient had been involved in an earlier assault on a member of staff on 27 June. The patient's condition exampled how such people required a therapeutic environment, which provided opportunities for acquiring new knowledge necessary for the patient to manage their illnesses more effectively, for learning new behaviours and problem solving skills. This required interaction with clinical staff, so that the patient's own coping skills and adaptive behaviours could re-emerge and assert themselves. This required increased degrees of patient autonomy during hospitalisation, in order that the patient could exercise these abilities. This was necessary, for the transition to community living to be achieved and was incompatible with maintaining an overly restrictive environment, coercive treatment or custodial form of care for such patients. 17 Professor Carr's view was that the result of this therapeutic approach was that there could be no therapy for such patients, without a degree of risk of adverse events arising. This required continuous assessment and re-assessment of the patient and intense surveillance by skilled staff to manage the process of less surveillance, to the point of discharge to community based treatment. Social interactions between patients and staff were a necessary component of this process. 18 Professor Carr's evidence was that various changes in behaviour which may presage violent outbursts, were usually evident to staff beforehand. This indicated that a change in approach to clinical management was necessary, with a variety of available aggression minimisation strategies, including verbal de-escalation, sedating medications and if necessary, physical restraint. 19 In this case, the initial diagnosis was that the patient had depression with moderate suicide risk. A major depressive disorder beyond her control and requiring in-patient treatment, with a co-existing personality disorder complicating management, later emerged as a possibility, as did a diagnosis of a personality disorder with disruptive, obnoxious behaviours that were conscious and under voluntary control. Professor Carr's evidence was that differing opinions between members of the treating team can be engendered by persons with borderline personality disorder, particularly in hospital settings. What emerged in the medical record which culminated in the assault on 3 July, was not uncommon in such cases. 20 This patient also had substance abuse problems, which were not, however, her major or immediate problems. Information which emerged during her hospitalisation included multiple admissions to numerous psychiatric facilities over several years in this State and interstate, as well as sexual abuse, drug abuse and prostitution during adolescence. There were repeated diagnoses of borderline personality disorder from 1983, with repeated incidents of uncontrollable behaviour, self-harm and assaults and threats of harm to others. On the basis of the medical records, Professor Carr concurred with the diagnosis of borderline personality disorder and major depression. He had not had an opportunity to examine the patient and had not discussed her circumstances with treating staff. 21 Her condition resulted in her detention as an involuntary patient at the hospital, after harassment of other patients, abuse of staff and continual suicidal ideation. Behaviour consistent with the diagnosis continued and she was at one point admitted to the psychiatric intensive care unit. The patient was eventually discharged. The parties' cases 22 Ms Lowson of counsel for the prosecution submitted that the objective features of the offence supported a finding that the failure to ensure safety were serious. They included: (i) the maximum penalty (for corporations) prescribed by Parliament for the offence at the time it was committed was $550,000 for the first offence and $825,000 for subsequent offences; (ii) the risk to safety was foreseeable and could have been guarded against by appropriate maintenance; (iii) the provision of emergency communication facilities to nurses working in psychiatric institutions is an essential aspect of ensuring the health and safety of employees working at those hospitals given the likely need to call for further resistance in circumstances including assault by patients; (iv) the failure to maintain all aspects of those systems of communication in a serviceable and operational state puts nurses at significant risk given the circumstances in which they work; (v) the defendant was on actual notice that the patient involved in the incident on 3 July had previously engaged in aggressive behaviour including but not limited to aggressive behaviour towards nursing staff; (vi) the failure to maintain all elements of the system was exacerbated in circumstances where the element that was operational on 3 July 2000 - namely the duress personal alarm system - did not itself meet the appropriate standards either as required by the defendant's own policies or as required the relevant Australian standard; (vii) the condition of the PA and 7999 systems was such that the only appropriate mechanism for remedying the fault demonstrated on 3 July 2000 was to replace the system in its entirety. 23 The fact that the assault occurred at night, while the system was in a state of disrepair, indicated the level of risk which nurses faced. The PA and 7999 systems were an integral part of the communication system, in addition to the duress alarm system. It followed that proper maintenance should have been a priority. Ms Kennedy's evidence showed that the defendant's approach to such maintenance had been reactive, not proactive. 24 The evidence showed that this patient had earlier assaulted a nurse in a darkened corridor on 26 June. This was relevant, because such situations were what the communication system was designed for. 25 The risks in question were submitted to be foreseeable. It was submitted that: (i) the risk of aggressive behaviour by patients leading to injuries to staff was foreseeable by the defendant; (ii) the need for nurses to utilise the emergency communication system was foreseeable by the defendant; (iii) specifically the risk of this patient engaging in aggressive behaviour was foreseeable by the defendant; (iv) the level of disrepair of the PA/7999 system, such that it needed replacement, and the lack of manuals about that system, suggest that there was an inadequate maintenance system. It is foreseeable that a system involving networks of wires and electronic parts, if it is not properly maintained, may fall into disrepair such as to lead to a situation where an immediate repair cannot be effected with the consequence that the system would be out of operation for a period of time and specifically overnight. 26 The defendant should have been on notice of the importance of emergency communication systems, given the decisions of the Court in other cases where employees were obliged to deal with potentially aggressive patients. WorkCover Authority of New South Wales (Inspector Tuckley) v The Crown in the Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 was relied upon. 27 It was also argued that the relatively simple steps taken afterwards to improve the emergency communication system would be taken into account. These included the installation of further mimic panels as a temporary improvement; the replacement of the system which identified the location of the person activating the alarm and the entire replacement of the PA system. 28 It was accepted that the evidence did not show any significant delays flowing from the PA system and 7999 systems not having been operational. However, it was submitted that the failure to maintain meant that the risk of delay occurring did arise. Given that the purpose of the system was to ensure immediate communication, this risk was relevant to a consideration of penalty. The defendant's documents showed that there was an expectation that all three components of the system would be used. The benefit of using the microphone, for example, was to enable the precise location of an incident which had been reported. 29 It followed that all aspects of the system were necessary to ensure safety and a failure of any component was a serious matter, given that the staff were working with psychiatric patients where a risk of assault was obviously present. The evidence that maintenance could only be dealt with on a reactive basis, was in that context unsatisfactory. It led to the system not being repaired and nurses being left at risk, because the system was then inadequate. 30 The evidence showed that while there was some commitment to safety, it was not of a superior kind, as described in WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service (2002) 112 IR 245. Reactively repairing the system did not leave such a conclusion open. Nor was there evidence as to how relevant policies were disseminated to staff, nor how they interacted with the training referred to in Ms Kennedy's evidence. Her cross examination showed that there was room for improvement in these areas. 31 It was also submitted that the evidence showed that the system was deficient in three respects. It did not exactly identify where the incident was occurring; it did not directly communicate with the response personnel and it had no 'man down' function. 32 Submissions were advanced in relation to general and specific deterrence. It was submitted to be relevant that although there was evidence of the PA system having been replaced, there was little evidence of how maintenance had been improved. 33 While the earlier offences were not of the same nature, it was argued that they, nevertheless, had the 'effect of leading to a significantly increased maximum penalty applying'. As to subjective features, it was argued that regard might be had to the plea, but it was not entered at an early point. There was no evidence of contrition or of particular co-operation with the prosecuting authority. As to its approach to occupational health and safety, the evidence showed that there had been some attention paid to this by the defendant but not attention of the kind discussed in some cases. It was later announced by Mr Hodgkinson that an agreement had been reached in relation to this aspect, to this effect: 'In addition to the matters I raised in relation to this position of co-operation, there has been an agreement reached for those behind me along these lines: That it's agreed the defendant complied with their statutory duties in relation to the investigation; that the OHS co-ordinator, Ms Roohan, assisted the inspector when requested and was generally co-operative; responded to requests from the inspector to conduct occasional meetings and work party consultations to deal with duress alarm issues; co-operation with legal representatives have involved the defendant in attending a Premier's conference to discuss the charges in October 2002 and attended a further meeting in October 2003 and co-ordinated preparation for the hearing of the matter. That the extent of the agreement so I don't go any further than that.' 34 Account would also be taken of the steps taken subsequently to improve the system. It was argued that this however reflected, in part, compliance with the 1999 improvement notice. It was also submitted that there was no real evidence of contrition, or of steps taken to assist the injured staff. Submissions about such matters would be given less weight, in the absence of evidence. 35 The case for the defendant advanced by Mr Hodgkinson SC, appearing with Mr Shume of counsel, was that it was relevant to bear in mind that the charge was concerned with the communication system in operation at the hospital in one confined building, housing four units. The system had both personal and fixed duress alarms, a PA system and dialling 7999 on the telephone. Alarms were notified by light and sound on minicom panels throughout the building. 36 The charge was concerned with failure to maintain the totality of the system, in that two of its components were not operational for a short period of time. When the code red was notified in that period, the evidence showed that there was a very, very quick response, despite this. This demonstrated that the staff involved understood their roles and that the system was operationally effective, even when those two elements were themselves not operating. It followed that the system was one which had been well thought out and operated effectively, even in those circumstances. 37 The evidence also showed that the faults had been detected in a routine weekly test. The system was operating the previous day. The records maintained by the defendant, another part of the system itself, demonstrated this, as well as ongoing investigation of every activation of a duress alarm, even when bumped by staff. This demonstrated the level of sensitivity of the system maintained. 38 The defendant's engineer immediately attended to the problem when it was detected and when it could not be rectified, the contractor was called. They too were unable to diagnose the problem, which was found the next day to have resulted from a corroded cable. There was no evidence as to the cause of the corrosion. The evidence also showed that staff were alerted to the problem. This was the appropriate response, given that the defendant could not close down the hospital or stop caring for the patients admitted. These steps were relevant to an assesment of the nature and quality of the offence and were important because they demonstrated the level of the defendant's commitment to safety. 39 It was an agreed fact that the nurses who activated their alarms could not know if they had been detected. The evidence also showed a response within 25 and 30 seconds. Other steps were taken by other staff to notify of the code red by phone and in person, when the microphone could not be used. The resulting response was a normal one to such an emergency. 40 The evidence showed steps taken to improve the system thereafter and that they themselves gave rise to other problems which had to be addressed. The evidence demonstrated maintenance of the system and that parts were later upgraded and replaced at considerable costs. 41 It followed that this was a case where the system was not comprised of a single component, but had backup even in the event of failure of two components. It also operated so that people involved were aware of the problem and knew how to act in that context. Here was not a simple reliance on hardware. These matters were significant to an assessment of culpability. The evidence had demonstrated its proactive commitment to safety. 42 The evidence led from Professor Carr put into context the difficulties which confronted the defendant. The defendant was unable to simply preclude interaction between patients and staff. The necessary process was interactive and required constant assessment and re-assessment. The communication system needed to address these needs. That was what was attempted. The imperfection of the system explained the plea. The subsequent steps taken confirmed the defendant's overall approach to safety. 43 It was also submitted that the plea was an early one and that there had been proper co-operation with the investigating authority. The plea indicated the nature of the defendant's remorse. It was very remorseful that any of its staff had been injured. Consideration 44 This case again highlights the practical difficulties which the onerous obligations imposed by the Act raise for those upon whom absolute obligations to ensure safety are imposed, particularly when the undertakings which they pursue, in the public interest, give rise to risks for those employed therein. 45 The evidence well demonstrated the challenges which face those who work in the field of mental health. The evidence showed that conduct, both voluntary and involuntary, of persons with illnesses of various kinds, gives rise to the risk that those who are involved in their treatment, will be injured. Such risks are, as the prosecution submitted, foreseeable and thus must be excluded, if the obligations which the Act imposes are to be met. 46 The evidence referred to the various strategies which this defendant has devised and implemented, in order to protect patients, staff and others from injury, as the result of such patients' violent behaviour. In this case, the charge to which a plea was entered, was concerned with the communication system, which the defendant operated in July 2000. By its plea the defendant accepted that it had failed to maintain the hospital communication system, in a condition which was safe and without risk. 47 The evidence showed that the system had a number of components, which included the hardware, such as the minicom system, the PA system and the 7999 system. The defendant also had a variety of policies and procedures in place, as to the way in which that hardware was to be operated by the staff in the circumstances for which it was designed. Some of the documents in evidence were operating at the time of the incident and some were revised, or implemented subsequently. The system also involved staff in undertaking the various roles and duties required of them, in the event that a response was required to an emergency or code red situation. 48 It could immediately be seen from the evidence, that this was not a case where there had been a serious failure by a defendant to ensure that it had an effective system of communication. To the contrary, the evidence showed that a detailed system was in place and operating, but that two of the hardware components, the PA system and the 7999 telephone system, were not operating on the day in question. The third component, the minicom system was operating. Staff were alerted to the problems, so that they could be taken into account. Staff acted accordingly, although the evidence demonstrated that so operating the system was not optimal. Notification of a code red by telephone on a ward by ward basis, rather than instantly over a microphone, had obvious potential drawbacks. While having taken steps to inform staff was undoubtedly important and a failure to have done so, would have involved a more serious breach of the defendant's obligations, staff being placed in this position was also not optional. This undoubtedly helped explain the entry of the defendant's plea. 49 The fact that the response to the duress alarms when activated that night was immediate, however, despite the failure of two components of the physical system, well demonstrated that an effective system was operating, even in the face of the failure of two parts of the system. 50 This was also not a case which was concerned with improvements which ought to have been made to an obviously deficient system. Rather, as the charge makes clear, it was concerned with the fact that the system was not completely functional, at a time when the nursing staff in question were confronted by a violent patient, who had to be restrained and in undertaking such restraint, sustained injuries. The evidence did not show that the injuries resulted from the nurses' inability to operate the PA system or the 7999 system, or as the result of any deficiencies in the minicom system. Rather, the injuries were the obvious result of a failure of the strategies described by Professor Carr, designed to detect and control impending violence in a patient with a serious condition, which made her subject to violent outbursts. These strategies did not on this occasion preclude the assault. Again, however, the charge in question was not concerned with that failure. 51 The evidence strongly suggested that there was no delay at all in the usual response to a duress alarm being raised at this hospital, even when the PA and 7999 systems were operating. The minicom system operated so that both a visual and aural alert resulted from the duress alarms being activated. If there was any delay in the response, it can only have been of the shortest duration. While it was an agreed fact that the nurses could not be certain that their duress alarms had alerted the response team to the emergency, a response within 25 and 30 seconds showed that they were not left in doubt for long. That operation of the microphone in these circumstances could have led to any different or better outcome, is doubtful. To the contrary, that might only have distracted one nurse from immediately giving aid to the nurse being assaulted. It is also relevant that the nurses were aware of the problem and so no time was wasted in futilely seeking to operate the microphone. 52 The assault occurred at the nursing station. One nurse was the subject of the assault. Two others were present. All three activated their duress alarms and the other two nurses went to aid the nurse being attacked. The first response to the alarm resulted in an arrival within 25 seconds of the mimco alarm being detected, as the patient was being subdued, the second was within 30 seconds, after the patient had been subdued. Five people responded in total. 53 It was the prosecution's submission that the evidence demonstrated a reactive, rather than a proactive approach to maintenance of the system. That was not made out on the evidence. The fault was detected in a routine weekly check of the system. It had been functioning the previous day. It was the subject of routine monthly maintenance. The particular fault was the subject of immediate investigation by the defendant's staff and then by the external maintenance contractor, when the fault could not be located. 54 If the approach adopted that day is properly open to criticism at all, it was that the rectification work was not continued until the corroded wire was located and replaced, rather than being left to be dealt with the following day. The contractor's subsequent advice was that the absence of technical information and circuit diagrams for the system, which was complex, made testing and fault finding time consuming and difficult. Replacement of the system was recommended. The recommendation was accepted. The parties, nevertheless, agreed that such information would have made no difference in detection of this particular problem. The problem with the lack of technical information was, however, plainly not new, but of longstanding duration, given the evidence of the paucity of information about the system provided to the defendant by the Department of Public Works in 1993. This deficiency was obviously not adequately attended to in the meantime. 55 This was a system where the defendant had experienced problems with the reliability of all three of the physical components of the system, over time. Any mechanical system, even with proper maintenance, may, of course, fail. How such a failure is responded to, is relevant to a consideration of whether there has been any breach of the obligations imposed by the Act and if so, the nature of the breach. 56 Had the duress alarm system itself become non-functional on 3 July, obviously a possibility in the circumstances, serious problems could plainly have developed. At that time, the problems and risks, which the patient in question posed, were apparent. The risk that the strategies described by Professor Carr, would not be adequate to prevent her from assaulting a member of staff, was clearly present and needed to be excluded. The communication system was vital, if those strategies failed. 57 They did fail on the evening of 3 July. The duress alarm system was then operated, so that the injuries were minimised. The circumstances were such that the defendant, nevertheless, entered a plea to the charge. 58 As the prosecution submitted, account has to be taken of the risk which flowed from the failure of two parts of the alarm system. The evidence showed that there had been problems experienced with the minicom system. Had that part of the system failed as well, the results could undoubtedly have been more serious than they were. The duress alarm system did not, however, fail and as the defendant submitted, account must also be taken of the fact that the system which the defendant had in place, had three physical aspects, so that even when two parts of the system failed, still the third was available and operating. 59 The determination of penalty is concerned with an assessment of the nature and quality of the offence in question. The evidence showed that the Thwaites Building was constructed under the auspices of the Department of Public Works in 1993. That Department recommended the minicom system as the best available and that preferred in New South Wales correctional facilities. Monthly preventative maintenance was undertaken by an external contractor. Maintenance was hampered by the failure of the Department of Public Works to provide the defendant with all of the pertinent manuals and information. The system was improved in 1997 by the introduction of 'pendant' personal duress alarms. In 1999, the WorkCover Authority of New South Wales issued an improvement notice. The defendant engaged Dupont to review and assess safety systems across the board, at a cost of $2,500,000. 60 The PA system was upgraded in October 2000 and additional minicom panels were installed in December. In October 2001, as the result of the work of an Occupational Health and Safety Committee, a new Ascom Teleprotect system was installed. It has the improved features earlier referred to. 61 It cannot be doubted that over time, technology improves, with the result that safety can be better ensured. The evidence showed that the communication system, which was regarded as being state of the art in 1993, was upgraded in 1997 and was significantly modified and partially replaced after the events here in question. The result was improvements in the capacities of the system. The charge in this case was not, however, concerned with the inadequacies of the system in operation on 3 July. It was rather concerned with the failure of parts of the system that day. Rectification of that failure was potentially hindered by the absence of relevant information, unavailable since 1993. The rectification was not completed that day, but left to the next. It is these factors which must lead to the imposition of a higher penalty, than might otherwise have been imposed. 62 It follows that it must, nevertheless, be concluded that while the plea was properly entered, the offence in question did not have the serious characteristics of the offences considered in cases such as WorkCover Authority of New South Wales (Inspector Tuckley v The Crown in the Right of the State of New South Wales (Department of Community Services), where there was, in reality, an absence of any effective emergency communication system at all. Nor was it a case like WorkCover Authority of New South Wales (Inspector Pompili) v Central Sydney Area Health Service, which was concerned with serious failures in the defendant's system of management of patients, which did not preclude a serious assault of staff by an ill patient, armed with broken glass, in an area which had no controlled point of entry. 63 The circumstances revealed on the evidence in this case, plainly do not call for the imposition of a penalty as significant as those imposed in these cases. I accept, however, that both specific and general deterrence have a role to play in the penalty imposed. 64 I have concluded that the appropriate penalty in all of the circumstances of the failure with which this charge is concerned, is $70,000. In coming to that figure, I have also had regard to the defendant's record, but note that I do not accept the submission that the record must lead to 'a significantly increased maximum penalty applying'. Consideration of record does not have such a role to play in the imposition of penalty. 65 As to the timing of the plea, I am satisfied that the plea was an early one, entered at the first opportunity after the amendment of the charge. The defendant is thus entitled to a reduction of 25%, flowing from the utilitarian savings resulting therefrom. I am satisfied that otherwise, a further reduction of 8% is warranted, having in mind the evidence as to other relevant subjective features earlier mentioned. The resulting penalty is $46,900. Orders 66 For all of the reasons given, I find the defendant guilty of the offence charged and impose a penalty of $46,900, with a moiety to the prosecutor. The defendant is to pay the prosector's costs as agreed or assessed in accordance with the Court's Rules. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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