Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Michelle Bogue v Ramsay Health Care Australia Pty Ltd. [2004] NSWIRComm 390 PROSECUTOR: Inspector Michelle Bogue PARTIES : DEFENDANT: Ramsay Health Care Australia Pty Ltd. FILE NUMBER: IRC 1250 of of 2003 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 1983 - s 15(1) - guilty plea entered - assault on nurse by patient of a psychiatric hospital - duress alarms available but not issued - agency nurses not instructed in availability and use of duress alarms - general orientation and instruction of nurses in defendant's policies and procedures allowed to lapse - emergency procedures not addressed by defendant in circumstances of staff dealing with aggressive patients and facing possibility of violence - defendant's system for screening patients - violent patients and other patients scheduled under the Mental Health Act not accepted - defendant employs many people and operates numerous facilities - no previous record - substantial changes and policies introduced after assault - serious offence found - breach comprehensive - general deterrence and limited role for specific deterrence - early plea and subjective factors lead to substantial discount - penalty imposed HEARING DATES: 10/19/2004 DATE OF JUDGMENT: 12/15/2004 PROSECUTOR: Ms P McDonald of counsel SOLICITORS: WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Legal Group DEFENDANT: Mr P Hall QC with Ms L Constantine (Solicitor) SOLICITORS: Blake Dawson Waldron JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 15 December 2005 Matter No. IRC 1250 of 2003 Inspector Michelle Bogue v Ramsay Health Care Australia Pty Ltd. Prosecution under s 15(1) of Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm BACKGROUND 1 On 11 March 2001, Ms Suzanne Moroney was a registered nurse employed by Ramsay Health Care Australia Pty Ltd at the Evesham Clinic, Cremorne. Ms Moroney had 35 years' nursing experience and had been placed at the Clinic by a recruitment service on 30 October 2000. 2 During the evening of 11 March 2001, a patient who had previously been admitted to the Clinic was showing signs of distress and was being attended to by Ms Moroney when the patient assaulted her, attempted to strangle her and inflicted a number of scratch injuries. Ms Moroney was able to scramble from the initial assault but the assault continued into a nearby treatment room where she was able to press a number of duress alarms which shortly after resulted in other employees coming to her assistance. 3 The circumstances of this assault were investigated by the WorkCover Authority. Following those investigations, Inspector Bogue commenced a prosecution alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983 by Ramsay Health Care. The defendant Ramsay Health Care has pleaded guilty to an amended charge and this judgment deals with the evidence and submissions on penalty. THE CHARGE 4 The defendant was charged that on 11 March 2001, as an employer at Evesham Clinic, Cremorne it failed to ensure the health, safety and welfare at work of all its employees and in particular Suzanne Moroney contrary to s 15(1) of the Occupational Health and Safety Act 1983, in that the defendant failed to provide and maintain a system of work for managing psychiatric patients that was safe and without risk to health. 5 The particulars of the charge were as follows: (a) the defendant, at all material times, undertook the hospitalisation of psychiatric patients in the Evesham Clinic; (b) the defendant, at all material times, employed a number of nursing and other personnel, including Suzanne Moroney; (c) the defendant failed to provide and maintain systems of work to ensure that employees would not be assaulted by psychiatric patients; (d) the defendant failed to provide and maintain systems of work to ensure that the duress alarm system was operational, regularly tested and available to provide an immediate response in emergency situations; (e) the defendant failed to provide and maintain systems of work to ensure that there was a point of egress from the nurses' station or a lockable room to be used in an emergency; (f) the defendant failed to provide and maintain systems of work to ensure that identified risks to employees were adequately assessed and controlled; (g) the defendant failed to provide and maintain systems of work to ensure that formal safe work policies and procedures were in place for employees in the Evesham Clinic. (h) the defendant at all material times failed to provide employees with such information and training as might be necessary to ensure that the duress system could be operated in accordance with Australian Standards 4485.2 - 1997: Security for Health Care Facilities; (i) the defendant, at all material times failed to provide employees with such information and training as might be necessary to ensure that they were an oriented facility and were aware of all policies and procedures; (j) the defendant, failed to provide employees with such information and training as might be necessary to ensure that they would not be assaulted by psychiatric patients; (k) as a result of the said failures, Suzanne Moroney was injured. THE EVIDENCE 6 In addition to a number of photographs and a factual report, a detailed statement of facts was tendered by the prosecutor without objection and was not ultimately contested by the defendant. On the joint application of the parties the patient involved in this incident will be referred to in these reasons for judgment as "EG". 7 The following matters were covered by the Agreed Statement of Facts: (a) the patients in Evesham generally consisted of one-third elderly patients suffering mood disorders, one-third Vietnam Veterans suffering from alcoholism and post-traumatic stress disorders and one-third general psychiatric patients suffering from depression, anxiety disorders and general psychiatric disorders; (b) the defendant employed approximately 6,000 employees in a number of hospitals throughout Australia with about 35 employed at Evesham, a high proportion of staff being provided by agencies; (c) EG was 31 years old at the time of the assault and, prior to 11 March 2001, had been admitted to the Clinic on five occasions with a clinical history of bipolar mood disorder complicated by drug and alcohol abuse. Her last admission to the Clinic had been in June 1999. During her previous admission to the Clinic, EG had not displayed violent conduct towards other patients or staff. EG had previously been treated by Dr Taylor an accredited psychiatrist at the Clinic but Dr Taylor had not seen EG for about 12 - 18 months prior to 11 March 2001. EG had attended the emergency department at Royal North Shore Hospital late on 10 March 2001. The hospital progress notes showed that at various times she was verbally abusive, physically aggressive towards staff, showed aggressive and abusive behaviour, was aggressive at times and became agitated and became aggressive. EG had initially been scheduled under the Mental Health Act by Dr Hempling, who noted in the schedule: "told by fiancée and pt's brother that pt is verbally abusive, aggressive - throwing things at fiancée shouting ... nurse witnessed PT shouting, pointing finger in face in threatening manner". These progress notes and the schedule under the Mental Health Act prepared by Dr Hempling were not sent to the Clinic when EG was transferred to the Clinic; (d) during the morning of 11 March 2001, registered nurse Muriwai who was working day shift at the Clinic, received a telephone call from Dr Gunewardne the psychiatric registrar at Royal North Shore Hospital seeking the admission of EG to the Clinic. Dr Gunewardene said that EG had calmed down but needed a period at the Clinic to recover. Nurse Murawai telephoned Dr Taylor, who was the treating psychiatrist at the Clinic and passed on the information received from Royal North Shore. Dr Taylor telephoned Dr Gunewardene and accepted EG as a patient at the Clinic; (e) EG arrived at the Clinic at about midday and her medication was noted and the fact that she was ataxic and was unsteady on her feet. An accompanying letter from Royal North Shore Hospital stated that EG had previously been scheduled under the Mental Health Act but had been taken off the schedule to allow her admission to the Clinic; (f) Nurse Murawai then telephoned Dr Taylor to ask if he was aware of the scheduling and Dr Taylor said he would call the Registrar. Dr Taylor did not speak to Dr Hempling. Nurse Murawai asked Dr Taylor to come immediately to the Clinic to assess EG; (g) EG was assessed face to face by Dr Taylor at approximately 1.00 pm on 11 March 2001. Dr Taylor found EG to be sedated, decided it was appropriate to manage her at the Clinic and prescribed Valium three times a day, PRN (medication if required); (h) there were a number of documents that should have been completed on admission that were not completed on the admission of EG, including the nursing management plan, the brief nursing history form and the psychiatrist's assessment form. When Dr Taylor telephoned and was made aware of the schedule, he did not obtain the full clinical progress notes in relation to EG from Royal North Shore Hospital and he did not obtain a copy of the completed schedule. EG was not allocated a category in accordance with the patient category system policy when she was admitted; (i) at 2.30 pm on 11 March 2001, Ms Moroney commenced working the evening shift at the Clinic and was one of three nursing staff on shift. A registered nurse, Ms Frances, was in charge of Unit 1 (situated on the ground floor), and Gary Speerin, a registered nurse, was in charge of Unit 2 (situated on the first floor). The usual staffing was three: one per floor and one floating between two floors. Staff numbers were determined by the number of patients and not by the type of patient. Usually an additional nurse was rostered if 26 beds or more were filled at the Clinic; (j) during the afternoon, EG was observed to be groggy and she slept for a number of hours. Gary Speerin noted that EG woke up at 6.00 pm, was very confrontationa, somewhat aggressive and was irrational and unpredictable. At approximately 9.20 pm, the nursing staff on the night shift began to arrive and Ms Moroney went upstairs in the Clinic to ask Mr Speerin about the handover report. When she arrived upstairs, EG came down the corridor in Unit 2 on the first floor and was yelling. Gary Speerin told Ms Moroney that EG wanted a particular room with an en suite but that a patient already been allocated that room. EG was told that it would be sorted out in the morning. She appeared to accept this and Ms Moroney attempted to settle the other patients; (k) Gary Speerin went downstairs to give the afternoon shift report to the incoming shift. At the downstairs nursing station, Ms Frances gave a report for Unit 1 to Virginia Heron and Maree Fletcher, who were part of the incoming staff, and then left the Clinic to go home. Gary Speerin gave a report for Unit 2. As soon as Mr Speerin left the first floor EG approached Ms Moroney at the desk where she was sitting in the nurses' station, which was in a cul-de-sac at the end of the hall, to explain why she wanted that particular room. EG was agitated and Ms Moroney rang Dr Taylor to request additional PRN medication which was denied by Dr Taylor. EG was handed the telephone to speak directly to Dr Taylor. Dr Taylor spoke to EG who then stood up and yelled obscenities at Ms Moroney and said, "I'm going to kill that bitch". EG slammed down the receiver. (l) EG stood up, as did Ms Moroney, then grabbed Ms Moroney by her blouse and forcibly backed her up against a wall. Ms Moroney thought that if she touched EG it would send her into a fury and she tried to settle back into the wall so that EG would back off and walk away. At this stage, EG tried to strangle Ms Moroney who lost consciousness. When she came to, she was on the floor and EG was on top of her scratching her head, face and neck and hitting her head against the wall. EG was yelling. Ms Moroney backed into the treatment room because she was in a cul-de-sac and had nowhere else to go; (m) as Ms Moroney retreated into the treatment room, EG followed and continued scratching and clawing at Ms Moroney. Ms Moroney saw the duress alarms hanging on a keyboard on the side of the medication cupboard . She grabbed hold of four duress alarms and pressed every button she could, despite feeling nauseous and unable to stand. Records from the Nycon Security Group for the Clinic noted that at 10.07 pm on 11 March 2001, four alarms were activated within one second of each other; (n) Ms Heron, Ms Fletcher and Mr Speerin ran upstairs to the nurses' station. EG was pacing menacingly around the treatment room and Ms Moroney was sitting on the treatment room floor. Mr Speerin and Ms Fletcher went to assist Ms Moroney while Ms Herron went to calm down EG and to remove her from further menacing Ms Moroney. EG yelled that Ms Moroney was "in her face" and that she was going to "fucking kill her". Mr Speerin shut Ms Fletcher and Ms Moroney in the treatment room and placed himself outside the treatment room door as protection. EG continued to return to the treatment room and kept yelling at Mr Speerin and Ms Heron. Two police officers then arrived; (o) an ambulance was called and took Ms Moroney to hospital accompanied by Ms Heron. Dr Taylor arrived at the Clinic and placed EG under Schedule 2 of the Mental Health Act. The police took EG to Royal North Shore Hospital where she was admitted to the Cummins Unit; (p) Ms Moroney suffered compression of both carotid arteries and remained in hospital for observation as the injury could result in a heart attach or stroke. She suffered bruising and scratches over her face, neck and chest, pieces of skin had been taken off her neck and face, she had bruising and a haematoma on the back of her head and a twisted right knee. Ms Moroney was prescribed sleeping medication, anti-inflammatories, pain medication and anti-depressants. She began seeing a post-traumatic counsellor once a week. Her claim for workers compensation was accepted by the defendant's insurers; (q) Ms Moroney attempted to return to work for one shift at the Clinic two weeks later but was unable to continue this work. She has been unable to return to work as a nurse and continues to suffer from severe post-traumatic disorders. While her doctor offered to place her on the disability pension, Ms Moroney has declined this offer and is continuing to search for alternative employment to nursing. The defendant did not discuss the incident with Ms Moroney or conduct a formal de-briefing of the incident, although Ms Moroney was offered counselling; (r) the risk of staff being assaulted by patients was known to the defendant prior to 11 March 2001. The nature of some psychiatric illness is such that there was potentially a risk of staff being assaulted by patients. The investigation by the prosecutor revealed that a number of other incidents had occurred at Evesham Clinic prior to the incident involving Ms Moroney. A table of those incidents was compiled for the period between April 1998 and March 2001 where seven separate incidents were recorded. These incidents involved aggression, physical abuse and violence to a staff member, threats to a staff member, striking a staff member, physically and verbally threatening a staff member; (s) in about July 1998, a duress alarm system was introduced to the Clinic. The system consisted of eight panic alarms designated for particular areas, four receivers, which activated the signal from the panic alarm, and six sirens installed throughout the Clinic to ensure that the alarm could be heard. The panic alarms had four buttons in different colours which indicated different areas of the Clinic. The alarm system operated so that when it sounded a numeral would be flashed on the screens indicating where assistance was needed. The alarm was connected by Nycon Security and, if activated during business hours, the security firm would contact the Clinic to determine if police assistance was needed. If activated after hours Nycon Security would immediately contact the police for assistance; (t) in January 1999, the defendant issued an duress alarm system policy and procedure. The document was replaced by a new policy in January 2000 which provided: "Nursing and therapy staff must sign for their alarm at the commencement of their shift and sign that they have returned at the end of their shift in the register provided, located at Unit 1 nursing station". The register for the period prior to the incident on 11 March 2001 could not be produced to the Inspector by the defendant. A new register commencing 19 March 2001 was started by the defendant after the incident; (u) Ms Moroney was not wearing a personal duress alarm at the time of the assault. She had not received information and training on their operation, was not given information and training on any procedure to be implemented in the event of an alarm but she was aware of duress alarms stored on the keyboard and grabbed these during the assault; (v) Australian Standard 4458.2 - 1997 Security for Health Care Facilities - Procedure Guide refers to duress alarms and states that: "Critical to the effectiveness of any duress alarm is a speedy, reliable and competent response". The alarms mioght be necessary for personal security of people who may, because of their duties, be subject to violent acts. A duress alarm system was acknowledged by the defendant as being necessary. The Standard states: It is imperative to the successful operation of the system that there be a means of quickly communicating the precise location of the alarm to the response agency. Staff should be trained how, when and when not to activate duress alarms and should be informed of the nature of the response they can expect to such an activation. (w) at the time of the incident, it was the defendant's intention that all new nursing staff receive an orientation to the Clinic. There was no written orientation policy for nursing staff and the practice was that new nursing staff be provided with orientation of approximately a half-hour's duration by a permanent member of staff. No records of this orientation were kept; (x) Ms Moroney's first shift at the Clinic was 9.30 pm to 7.30 am on 30 October 2000. The only other staff on duty that night was an agency nurse. At the shift handover, Ms Moroney was given a report on the current patients and was handed the keys. She was given no induction or orientation training. On her first shift, the duress alarm system was not explained to Ms Moroney and at that time she did not know that the Clinic had a duress alarm system. At no time before the incident did the defendant provide Ms Moroney with information, instruction or training in relation to managing potentially violent or aggressive patients or the duress alarm system; (y) formal orientation of agency nurses began after the incident on 11 March 2001. Agency staff received the "orientation of agency nurses check list" in April 2001, and the "mandatory duress alarm agreement", the "mandatory training agreement on use of lockable secure clinic room" and the "prohibited employment declaration" in June 2001. These procedures were not in place prior to the incident on 11 March 2001; (z) after the incident, the wearing of personal duress alarms was enforced by the defendant for permanent and agency staff. Ms Moroney received orientation on 26 March 2001 as documented by a check list she had signed. All staff had to sign for the duress alarms and they were notified that their employment could be terminated if they were found working without a duress alarm; (aa) at the time of the incident the defendant had a number of policies in place, including an occupational health and safety policy (revised 31 January 1999), duress alarms systems policy and procedure (revised January 2000), violent patient policy (revised 31 January 1999) and incident/accident reports (January 1999). The incident/accident reports policy stated that such reports were passed to the Director of Clinical Services/Manager of the Clinic in order to monitor untoward events and to enable corrective action to be taken as well as to reduce or eliminate further risk of injury to staff, patients or visitors. Reports were collated and results acted upon where necessary. There were management meetings held every week. On 7 March 2001, the issue of duress alarms was discussed including the training of agency staff and how to respond to an alarm. Discussion was left to the next meeting. The next management meeting was held on 14 March 2001, after the incident, and the issue was raised as to who was responsible for training agency staff in responding to duress alarms. A note was made of the need for policy and procedure for the process; (bb) Australian Standard 4485.1 - 1997 Security for Health Care Facilities, General Requirements at s 7 refers to the responsibility under State occupational health and safety law to provide for the safety and security of staff, patients and visitors. Each facility was to undertake an initial risk assessment and the policy and procedure developed as part of that initial process was to be regularly reviewed and revised as required. The Standard stated that the facility be able to produce evidence of the research undertaken in the security risk assessment process and to produce evidence that the recommendations of the Security Risk Assessment had been implemented. The policy and procedure should include incident prevention, incident control, incident evaluation and response to duress alarms and calls for assistance; (cc) the Standard also required policies and procedures for dealing with incidents, the need for safety and security procedures during an incident, incident investigation, reporting and recording of the incident, debriefing of staff involved in the incident, critical incident stress de-briefing, evaluation of de-briefing data and damage control and minimisation of the potential for recurrence. This did not occur in the present case; (dd) after the incident on 11 March 2001, the defendant took the following action: the clinical doors were changed to stable doors so that anyone dispensing medication in the treatment room would be behind a half door which could be locked and become a safe room; a telephone was installed in the clinic rooms; all staff now carry a duress alarm, including every person on an official visit. Identified "black spots" have had alarms installed and the volume has been raised. The black spots had not been identified prior to the incident. The duress alarm system did not include a location finder. Orientation for agency nurses was reviewed and a written formal orientation policy introduced on 16 March 2001. Staff were oriented on major hazards, fire and safety, duress alarms, meeting place and co-ordination of searches. When a duress alarm is activated, all staff have to be identified by reporting to Unit 1, redirected by the co-ordinator to the area that has been activated; mandatory aggression training for all new staff has been implemented. All agency staff must start half an hour prior to commencing first shift and new staff have to go through an orientation and sign that they have been instructed in emergency procedures, duress alarms, fire and safety, safety room and administrative information; potential admissions are assessed for previous violence as to whether they are accepted or are a risk to themselves or others. The assessment is made on a referral form and a rating is applied by the group after consultation: previously, prior history of violence was not rated. Staff members on night shift have been increased from two to three on three nights, Monday - Wednesday, and on any other nights in consultation with registered staff, depending on the case mix. After a security audit was carried on 29 March 2001, an external security company was hired to conduct security rounds seven nights per week and could be called at any time. A security guard checks the consulting rooms connected to the hospital, which check was previously carried out by nurses. The incident/accident reporting policy and the responsibilities of registered nurses in charge policy were both reviewed and a more comprehensive definition of critical incident was adopted; the incident report co-ordinator became responsible for reviewing the reports each week day and for raising any reports requiring prompt action with the Director of Clinical Services. The Director of Clinical Services was to review all incidents/accidents on a weekly basis. The summary of incidents and accidents was to be tabled monthly at the Clinic Safe Practice and Environment Committee meetings. A record of incidents/accidents was to be included in the Clinic's monthly risk management report to the Ramsay Quality Insurance Sub-Committee; a procedure was set out for review and management of critical incidents including reporting, investigation, formal review, de-briefing and peer review. Along with the treating psychiatrist, there is now a second duty roster whereby staff can contact another doctor if the treating psychiatrist is unavailable. A final backup is provided by the medical superintendent. On 12 March 2001, a memorandum was sent to all nursing staff stating that duress alarms must be worn and that a member of staff would be reviewing them for their adequacy. A security audit on 29 March 2001 found that certain areas of the Clinic were not covered by the duress alarms. Following this audit the duress alarm system was improved with the purchase of extra pendants and the patient bell system was improved by the installation of additional sirens/pendants; (ee) the prosecutor attended the premises with another WorkCover Authority Inspector on 20 March 2001, and again on 11 April 2001. Following these inspections, three improvement notices were issued to the defendant: firstly, to ensure the health and safety of employees working at the Clinic by providing and maintaining a safe system of work to prevent or minimise risks of assault by providing a safe secure area or by other means; secondly, to ensure the safety of persons exposed to the risk of falls from a height by providing guard railing at the stairway to prevent access to the roof; thirdly, to ensure the health and safety of employees by providing and maintaining a safe system of work to prevent/minimise risk of assaults. In response to the improvement notices, the defendant provided a lockable room next to the nurses' station for the nurses to use in case of a potential assault. The defendant provided training on the use of the room and has included its function in the new aggression minimisation and management policy. The defendant fitted guard railings to the area exposed on the stairway access to the roof and also developed an aggression minimisation and management policy, including management of patients with a weapon. The defendant also introduced mandatory attendance and aggression minimisation/managing a violent patient lectures and training programmes. 8 For the defendant, affidavit evidence was read in relation to the operation of Ramsay Health Care. Mr Brian Johnston was the Chief Executive of the Australian Council on Healthcare Standards ("ACHS"). He described ACHS as an independent, not-for-profit organisation dedicated to improving the quality of health care in Australia which continually reviews performance assessments and accreditation of the health care industry. Standards for evaluation, assessment and accreditation were drawn up by the Council which itself was drawn from peak bodies in health and representatives of all State and Territory Governments, the Commonwealth Department of Veteran Affairs and consumers. Mr Johnston stated that the principles underpinning ACHS standards were all consumer focused and included evidence of outcome; strong leadership; a strong commitment to quality improvement and a culture of encouraging best practice. 9 ACHS accredited health care organisations on an Australia wide basis and that involved a comprehensive survey and audit of all aspects of the health care organisation operations by trained ACHS surveyors. Results of the accreditation process were provided to the health care organisation in a report that contained ratings and recommendations. The health care organisation could also be granted accreditation for varying periods of time up to a maximum of four years. Between accreditation periods, ACHS monitored continuous quality improvement activities and conducted interim or periodic surveys of the organisation. 10 Mr Johnston spoke of the two main categories of standards and how the standards were assessed by reference to five levels. Within the functions a selected number of criteria had to achieve a rating of moderate achievement or higher (being the third of five criteria) for an organisation to gain accreditation. Mr Johnston was aware of the Evesham Clinic and understood it was licensed as a private hospital under the Private Hospitals and Day Procedures Centres Act 1988 (NSW) and that the Clinic held a licence under the Private Hospitals Regulation 1996 (NSW) to operate as a psychiatric class private hospital. 11 The Clinic was accredited by ACHS and had been accredited continuously since May 1988. The Clinic had always held the maximum level of accreditation status during this time. It had been surveyed on 25 and 26 October 2000, and as a result of that process, the Clinic was awarded continuing accreditation for a maximum of four years expiring on 23 December 2004. Accordingly to its practice, ACHS conducted an interim survey of the Clinic on 30 September 2002 and the maximum accreditation was re-affirmed for the balance of the four years. Based on data for January-August 2004, only 31 per cent of hospitals in Australia achieved accreditation for the maximum period. 12 Mr Christopher Rex was employed by the defendant as Chief Operating Officer and had held that position since 1995. He possessed a number of health care qualifications and had held a number of managerial positions in the health care industry. 13 In his position, Mr Rex reported to the Managing Director, Mr Grier, and was responsible for the operation of all Ramsay hospitals in Australia. He had responsibility for corporate services within Ramsay, including health fund relations, doctor relations, veteran affairs, hospital management, human resources management, legal counsel, information technology, risk management, national purchasing and corporate marketing. 14 The defendant was established in 1964 by Mr Paul Ramsay who is currently the Chairman of the Ramsay Board of Directors. Mr Rex described Ramsay as one of the largest private hospital operations in Australia, having a portfolio of 35 private hospitals, three of which had substantial contracts for Department of Veteran Affairs patients. Fourteen of Ramsay's hospitals offered psychiatric services, including Evesham. All Ramsay facilities had obtained full accreditation with ACHS. Ramsay employed more than 7,000 people and cared for 300,000 patients each year. Between 1964 and the mid-1990s, Ramsay underwent steady growth and evolution. The acquisition between 1993 and 1994 of large private hospital facilities provided a springboard for further growth and expansion. Ramsay was publicly listed on the Australian Stock Exchange in 1997 and, since listing, has continued to expand and has recently acquired the Benchmark Hospitals Portfolio comprising ten hospitals in Victoria and South Australia. 15 Mr Rex spoke about the Board of Directors of Ramsay, how it was comprised and the three Board committees, which included the Risk Management Committee. He was a foundation member of the Risk Management Committee which was responsible for the ongoing assessment and management of risk across the Ramsay operation. He was also responsible for the accreditation of Ramsay Hospitals and the review of hospital clinical and infection control procedures. The Risk Management Committee regularly received reports from each hospital and the growth in Ramsay had resulted in a greatly increased role for the Committee. The membership of the Committee has been reviewed and rationalised. 16 Ramsay had evolved a set of working principles which became known as "the Ramsay way" and provided a significant framework for all aspects of the Ramsay culture. People were recruited who would respond positively to the principles and who would be supportive of Ramsay's culture. In addition, the ACHS accreditation process had played an important role in the development of policies and procedures. Hospitals were required to demonstrate that the policies were implemented, acted upon and enforced in order to attain accreditation. Increased regulation and monitoring of corporate governance also necessitated evidence of adherence to policies and processes to be demonstrated to the Board. As a publicly listed corporation, Ramsay had strict reporting, accounting and compliance obligations. Risk management had assumed increasing importance since Ramsay was listed in 1997, and consequently a number of corporate policies applying uniformly across the organisation had been developed and approved by the Board and had been implemented at Ramsay. Policies and procedures were set both at a corporate level and at a local level of a particular institutional service. This was necessary to take into account the differences between States, because of legislation and regulation differences, as well as to meet specific local requirements. The Board had recently approved of a code of conduct governing behaviour expected of management and staff. 17 A Group Risk Manager and a Group Occupational Risk Manager had been appointed by Ramsay. There were corporate occupational health and safety policies and a range of policies dealing with risk management more generally. Corporate policies were communicated by Ramsay to staff through various media including hard copy, newsletters and staff briefings. For example, nurses working at Evesham Clinic wishing to access information about the Ramsay corporate occupational health and safety policies or risk management policies would be able to obtain these in hard copy from the Clinic Manager or from corporate group risk services. 18 Ramsay had participated in the New South Wales WorkCover premium discount scheme. This was a three year scheme providing incentives in the nature of a discount for workers compensation premiums to those companies who could demonstrate pro-active strategies for improved safety and return to work. A number of Ramsay facilities had been the subject of random WorkCover audits during 2003, and as a result of those audits, Ramsay had qualified for the maximum discount on its premium, being 15 per cent for the first year (2004), the maximum discount of 10 per cent for the second year (2005) and has qualified for the maximum discount of 5 per cent for the third year (2006). Ramsay hospitals and staff have received numerous awards and other forms of community recognition for their health care services. These awards included not only excellence in safety and health but excellence for hospitals and improvement in delivery services. Ramsay had also been recognised for achieving equal opportunity for women. Examples were given of Ramsay's community involvement in a variety of ways, including sponsorships and donations in a wide variety of areas. 19 The defendant also read a detailed affidavit accompanied by numerous annexures sworn by Anne Mortimer who was employed by the defendant as Regional Chief Executive Officer, Psychiatry. She was qualified as a registered psychiatric nurse and her current role made her responsible for the management and governance of three Ramsay psychiatric hospitals, namely, the Evesham Clinic, The Northside Clinic at Greenwich and the Northwest Clinic at Wentworthville. As Chief Executive Officer, Psychiatry New South Wales for the defendant, Ms Mortimer was responsible for the corporate and clinical governance of the hospitals within her portfolio. This was said to encompass the management of the businesses as well as clinical directions, including monitoring of corporate and clinical policies, staffing, patient mix at the hospitals, occupational health and safety issues, marketing, public relations, programme development and the appointment of visiting medical officers. 20 Ms Mortimer described the Evesham Clinic as a 36 bed private psychiatric hospital located at Cremorne. The treating medical practitioner, usually the patient's psychiatrist, must refer a patient to Evesham Clinic for in-patient care. The Clinic generally had a patient population comprising one-third of patients with general psychiatric conditions, including anxiety, affective disorders such as depression and psychoses including bipolar disorder and schizophrenia, one-third patients being Vietnam Veterans being treated for post-traumatic stress disorder and one-third elderly patients with depression, memory deficits and other general psychiatric disorders. It was emphasised that the Clinic did not admit nor was it legally able to admit "involuntary" patients who had been "scheduled" under the Mental Health Act 1990 (NSW) as a result of having being assessed as posing a danger to themselves or others. 21 The Clinic was purchased in 1966 by the founder of Ramsay and opened as a licensed psychiatric hospital in 1967. Ms Mortimer spoke of the licensing and accreditation standards, which were exacting, and which Ramsay had to meet in order to operate the Clinic. The New South Wales Department of Health conducts regular inspections of the Clinic and all private hospitals. Inspections are generally carried out every 12 - 18 months and the Department had in the past raised issues of improving safety and the Clinic had addressed all of those issues during the course of various renovations and refurbishments or by simple response to the inspection. 22 A number of reports from the Department between 1997 and 2000 were annexed to the affidavit. In relation to those documents, Ms Mortimer noted that the Department had not raised any issue in relation to the existence or operation of the duress alarm system or the design of egress from nurses' stations. The Department had noted the adequacy of standards and the approach taken by the Clinic and had made a number of statements praising the commitment by management to the maintenance of high standards of care and service. 23 Attention was drawn to the provisions of the Mental Health Act and the obligation of the Clinic to provide the best possible and most appropriate care in "the least restrictive environment". Differences between this care and care available from mainstream medical, surgical in-patient care and treatment was emphasised. Ms Mortimer stated that each psychiatric patient had a unique clinical presentation resulting from a number of factors and delivering care and psychological treatment require a significant degree of clinical judgment in the context of continuity assessment of the patient's psychological state and treatment needs. Nursing care in this context involved greater discretion and was less routine task focused or structured than in-patient treatment in the broader hospital population. The nature of psychiatric illness was such that patients commonly exhibited fluctuating moods and might at times experience distress arising from personal crisis or interactions with their family or others in the context of their illness. Staff working with psychiatric patients were required to have good communication skills, demonstrate considerable empathy and maintain a non-judgmental approach. Training of psychiatric nurses developed skills in noting and responding to fluctuating moods or any signs of escalating distress or behaviour shown by patients: this required flexibility and adaptability on the part of nursing staff. 24 In relation to the assault on Ms Moroney, it was Ms Mortimer's view that she was attempting to diffuse the situation with EG. In Ms Mortimer's experience, psychiatric patients were not more prone to violence than the general population. Anger and hostility in the form of verbal aggression might be directed by a patient towards their family members, and at times staff. Risks to staff were rare but might arise where psychiatric patients are exhibiting, for example, florid symptoms of psychosis or suffering organic brain syndrome or such dementia. In those cases, the patient care plan would be modified to contain extra supervision and management of the patient. The best predictor of violence arising from those risks was a prior history of violence by a patient. Rather than being generally prone to violence, patients with psychiatric illnesses were more likely to be emotionally labile or to turn anger or stress inwards on themselves, resulting in a heightened risk of self harm. 25 The Clinic used agency nursing staff and on average that was around 60 per cent of the nursing workforce. There was an endeavour to try to use the same staff from one or two agencies who had previously worked at the Clinic. Because the Clinic was a 24 hour service there were three shifts with three nurses working between the two floors of the Clinic. During the daytime, a number of allied health professionals such as psychologists conduct therapy sessions and group programmes for patients. The shift times overlap to provide for staff handover - a procedure for informing incoming staff about the patient and their treatment and care needs, including any significant medical or psychiatric issues that might have arisen during the shift. At handover, staff also identified the most acutely unwell patients on the ward: this information was regarded as important in determining nursing staff allocations. Where the situation warranted it, additional staff were available. 26 All nursing staff including agency nurses were required to undergo orientation before commencing their first shift at the Clinic. They were shown the hospital layout, the location of fire and emergency equipment, emergency evacuation points, how to operate the duress alarm system, the location of the nurses' station, where patient medication was kept and the location of staff amenities. After the 11 March 2001 incident, several enhancements were made to the orientation programmes. In relation to agency nurses, they were now required to attend the Clinic 30 minutes prior to the commencement of duty to undertake induction and the time was paid for by the defendant. There was also a checklist and lesson plan for orientation of agency nurses. In consultation with staff, an aggression minimisation and management policy was introduced although it had been planned prior to the March 2001 incident. Comprehensive mandatory training is now required to be undertaken twice each year by all permanent staff members and the aggression minimisation policy has replaced the violent patient policy. There were now a number of agreements which were mandatory dealing with various subject matters. In particular, a training agreement was developed in relation to the use of the lockable secure clinic room, a mandatory agreement was developed in relation to duress alarms and the wearing of portable duress alarms by staff at all times. 27 There were doctors' consulting rooms located in a building adjacent to the Clinic but within the hospital grounds. As required by the Mental Health Act, the Clinic had a medical superintendent whose primary role was to be the medical adviser to the Clinic. The medical superintendent also acted as an intermediary between the consultant psychiatrist and the Clinic, especially those issues relating to patient care. Doctors wishing to be credentialled at the Clinic applied to the Chief Executive Officer and were processed by the Medical Advisory Committee with the final appointing authority being the Ramsay Board of Directors. There was a policy for emergency medical consultation or treatment that had been in place for a considerable time and before this incident. Initial contact would be made with the patient's treating psychiatrist but there was also a duty doctor on an on-call roster. 28 At the Clinic, a back to base duress alarm system monitored by Nycon Security Group had been installed from May 1999 and, to Ms Mortimer's knowledge, the Clinic was the only private psychiatric hospital to have such a duress alarm system. Staff at the Clinic were issued with pendant style personal alarms and staff were also expected to wear them while on duty. The duress alarm policy was issued from time to time. This system was tested on a monthly basis but there were some black spots in the coverage but not in areas usually frequented by patients. The system operated on a siren which was transmitted back to the Nycon base: if Nycon was unable to contact the Clinic or if the Clinic staff confirmed that their services were required, the police would be notified. 29 After March 2001, the alarm system at the Clinic was upgraded to remove the black spots and improve the siren. The upgraded system at the Clinic has dual monitoring by radio and infra-red receivers. The radio receivers operate as location finders: when the alarm is activated, the radio receiver picks up the signal and gives a location. If the radio system does not work, the signal will then be detected by the infra-red receiver which will be activated and will give a zone. A response and search team had been established and trained at the Clinic and certain procedures had to be followed in response to any alarm activated in the Clinic. 30 The new duress alarm system is tested every eight hours. The personal pendant for each staff member is placed in a test box both at the beginning and completion of a shift. This system advises whether the battery is charged and whether the alarm system is operational. The results of the tests are written in a register. Ms Mortimer also instituted a monthly reporting programme to monitor compliance with the duress alarm policy. The wearing of duress alarm pendants became a mandatory condition of employment from May 2001 and random compliance audits are carried out to enforce the policy. Staff are informed at the commencement of their employment that a failure to comply with the duress alarm policy and associated procedures will result in disciplinary action. 31 Before the incident, there was an Occupational Health and Safety Committee at the Clinic which was comprised of representatives from a number of areas. Meetings were held monthly and a strategic quality plan was developed for July 2001 to December 2002. Further, in early 2002, Ms Mortimer established a regional occupational health and safety committee comprised of representatives from both Evesham and Northside Clinics. Combining the Clinics into a regional committee was designed to achieve consistent policies, practices and processes at both hospitals. All members of the current regional Occupational Health and Safety Committee had undertaken accredited WorkCover Authority training for occupational health and safety committee members. Ms Mortimer had undertaken the course herself. 32 Risk management was regarded as an important part of managerial and clinical practice at the Clinic, especially since the introduction of the Occupational Health and Safety Act 2000 and Regulations 2001. In February 2001, a risk management security audit was carried out at the Clinic. In relation to risk from a patient, patients were screened by nursing and medical staff to ascertain risk of harm to themselves and others. The process was reflected in the admission procedures and processes. At admission, the patient's history and any history of violence was considered and assessed - this was required by the aggression minimisation policy. Patients were continuously monitored for fluctuations in mood, and were assessed in terms of their risk classification at each shift handover so as to determine the nursing allocation. The Clinic's screening and admission processes were designed to minimise the risk of assault or violence by patients towards staff and the processes were in place in March 2001. Routine admission procedures now require a category classification to be given to each patient whether they are considered as being a risk of self-harm or not. These categories are consistent across all Ramsay hospitals. Ms Mortimer went on to deal with consultation with staff in relation to the operation of Occupational Health and Safety Committees, the Sydney Psychiatric Services Committee Structure, Management Reporting Processes, Strategic Direction and the Corporate Risk Advisory Committee. 33 Following the incident of 11 March 2001, a number of measures were undertaken to address the safety issues which arose. Ms Mortimer confirmed a number of the matters already set out in the Agreed Statement of Facts but also noted that there was an independent review of staffing levels, and the introduction of a policy that nurses conduct their night rounds in pairs. In relation to incidents involving patients at the Clinic, Ms Mortimer noted that in the 28 month period from November 1998 to 11 March 2001, there were three reported incidents involving patient staff aggression where physical contact by a patient on a staff member was involved. Mostly the staff were not injured in a way that prevented them from continuing duty, or alternatively were able to return to work on the next shift. In this same 28 month period, there were 27,000 patient days at the Clinic and the incidents therefore represented 0.01 per cent of Evesham patients during that period or, alternatively, 99.99 per cent of patients were not involved in any incident involving physical contact by a patient on a member of staff. DELIBERATION 34 In assessing the objective seriousness of this offence, the parties were principally at issue about the degree of foreseeability and the practical utility of the provision of duress alarms in circumstances of an unexpected violent attack of an essentially short duration. Before dealing with those issues it needs to be stated that the defendant has pleaded guilty to a breach of s 15(1) of the 1983 Act in what might be described as quite comprehensive terms. The particulars contained in the amended Application for Order refer to a failure to ensure the duress alarm system was operational, regularly tested and available to provide an immediate response in emergency situations; there was a failure to maintain a system of work to ensure that there was a point of egress from the nurses' station, or a lockable room to be used in an emergency; there was a failure to ensure identified risks to employees were adequately addressed and controlled; there was a failure to ensure that formal safe work policies and procedures were in place at the Clinic; there was a failure to provide information and training as necessary to ensure that the duress system could be operated in accordance with the Australian Standard; there was a failure to provide employees with such information and training as might be necessary to ensure that they were orientated to the facility and were aware of all policies and procedures. There was a failure to provide employees with information and training as might be necessary to ensure that they would not be assaulted by psychiatric patients. 35 It is to be remembered that the charge as framed refers to a failure to ensure the health, safety and welfare at work of all employees of the defendant and in particular Ms Moroney. Framed in this way, the charge looks to the risks evident in the system of work adopted by the defendant and uses the particular case of Ms Moroney as evidence of that class of risk. In the course of submissions, there tended to be an over emphasis on this particular incident leading to the debate over foreseeability and the utility of duress alarms in this particular case. 36 I accept the prosecutor's submission that, although the defendant had duress alarms and had a policy as to their use, the policy had fallen into disuse and had become no more than a paper system. Ms Moroney was an agency nurse who was given no orientation of significance and certainly none in relation to the requirement to wear a personal duress alarm and the circumstances in which it should be activated. I accept that she was probably aware that the alarms were present in the Clinic but the defendant was unable to produce the register associated with the use of the alarms. It may well be, as the defendant submitted, that the alarm system was a superior system and that most similar clinics in the industry did not use such an advanced system. Nevertheless, a system which is not enforced is of no benefit whatsoever. 37 The prosecutor submits that there was an obvious risk of a patient becoming abusive and escalating the situation to actual physical violence. The defendant had at this Clinic a policy in relation to dealing with violent patients and had purchased what the defendant referred to as "state of the art" duress alarms and these two matters were clear evidence that there would be times when staff would be threatened by excessive abusiveness and potential physical violence. The defendant's approach was to point to the nature of the Clinic as one not dealing with patients scheduled under the Mental Health Act and otherwise the adoption of screening patients such as to exclude violent patients. While there was a small number of actual physical contacts between patients and staff, those incidents were miniscule having regard to the number of patients treated. During submissions, senior counsel for the defendant accepted that, against this background, the defendant would have to factor in the experience, from time to time, that a person without a history of violence becomes unexpectedly violent towards staff. The relatively small number of such incidents at this Clinic simply meant that the defendant could not ignore the possibility. The debate about foreseeability is one then of degree. I accept the defendant's evidence as to its usual patient profile and the steps it takes to eliminate those with a history or propensity for violence. Nevertheless, the evidence shows that on occasions there was both aggressive behaviour and some aggressive behaviour which led to actual violence or the threat of actual violence. The defendant's obligation was then to have in place systems that addressed that type of risk. 38 When the issue is approached this way, the detailed debate about this particular incident seems to be largely a side issue. True it is that the patient in four or five previous admissions, had shown no predilection to violence or aggressive behaviour but on this occasion had appropriate enquiries and documentation had been requested from the Royal North Shore hospital it would have disclosed abusive, aggressive and violent behaviour in the patient EG. The next facet of the debate was whether the assault could be broken down into an escalation from abusive language after the telephone call with Dr Taylor to aggression and then assault as submitted by the prosecutor, or whether it might be regarded as a fluid and connected incident which happened so quickly that Ms Moroney was unlikely to have avoided most of the physical assault by being able to activate the duress alarm. Again, I find the emphasis of this debate misplaced. I accept that psychiatric nurses are trained to make assessments so as to emphasise the calming of the patient and to avoid taking precipitous action that might heighten their anxiety. The evidence does not allow a determination to be made as to whether this was an assault that escalated from aggressive language through a number of distinct stages, or an incident which suddenly blew up and was quickly concluded. What is clear is that, after the patient slammed down the telephone and used abusive and threatening language to Ms Moroney, she was entitled to feel in fear of her safety even if she then made the judgment not to activate a duress alarm if it was available. By the time the patient had started clawing at Ms Moroney's blouse and Ms Moroney was forced against the wall, that may well have been a stage that, in exercising her clinical judgment, Ms Moroney would have activated the duress alarm. Ultimately, all of this is conjecture because she did not have the alarm - the absence of the alarm left her without any option and it is something of a distraction from the charge as particularised to attempt to assess the seriousness of the matter by reference to imponderables. While I accept the defendant's submission that in this particular case there was an assessment of EG by qualified people for admission to this type of Clinic, and the assessment was one which focused upon EG's history, bearing in mind that this was a facility where patients were not admitted who were known for their aggression, and that the facility was not a minimum standard facility but a highly accredited and modern facility and that the incident was "unexpected', I nevertheless come to the view on all of the evidence that this was a serious offence. 39 There is no issue that general deterrence has a role to play in the setting of an appropriate penalty. In relation to specific deterrence, the defendant emphasised the nature of the facility, its screening process, its "state of the art" status as acknowledged by its accreditation, the views expressed by the Department in its inspections and its reduced premiums under the WorkCover scheme, as well as the numerous steps taken after the incident to address the detriment to safety exposed by it. In those circumstances, I accept that specific deterrence does not feature as a major element in assessing a suitable penalty in this case. 40 In relation to subjective features, there is no contest that this plea of guilty was entered at the earliest opportunity and in those circumstances it is appropriate that the defendant receive the benefit of the full discount of 25 per cent in relation to that aspect. The defendant is a large employer operating numerous facilities throughout Australia. The uncontested evidence was that it has no prior occupational health and safety record in New South Wales or in any other State. Bearing in mind the nature of the facilities operated by the defendant, this can be regarded as a good record and that is a matter to be given weight in the sentencing exercise. The evidence before the Court demonstrates that the defendant had a number of safety systems in operation but almost inexplicably the policy in relation to the use and operation of duress alarms and the orientation of new employees was not followed. Following the incident, the defendant took a number of significant steps, as I have already recognised, in addressing the detriment to safety exposed by this incident. In relation to these matters, I allow a further discount of 10 per cent bringing the total discount to 35 per cent. ORDERS: 1. The defendant is convicted of the offence under s 15(1) of the Occupational Health and Safety Act 1983 to which it pleaded guilty in relation to the Amended Application for Order in Matter No IRC 1250 of 2003. 2. The defendant is fined the sum of $74,750 with moiety to the prosecutor. 3. The defendant is to pay the costs of the prosecutor as agreed or in the absence of agreement as ordered by the Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.