Elizabeth Kennedy Corporate Counsel Epworth Health Care Safe and Secure Hospitals Conference Sydney October 2013

A LEGAL PERSPECTIVE: PREVENTION AND MANAGEMENT OF

VIOLENCE IN HOSPITALS

OVERVIEW

How do Hospitals typically manage violence and aggression?

Code of Grey responses – Are they legal?

Duty of care to provide a safe place of work vs. duty of care to patients

Are hospital workers any different?

Should we have better legal protection?

Human rights considerations

THE AGE 15 OCTOBER 2013

HERALD SUN 1 APRIL 2013

HERALD SUN EDITORIAL 1 APRIL 2013

EDITORIAL HERALD SUN 1 APRIL 2013

ANF ADDS ITS VOICE

TED’S THIN BLUE TRAIN LINE

“MACHETE ATTACK” ON DOCTORS

HOPPER ET AL

Aggression management in a children’s hospital setting

MJA 2012; 196 (3): 198-201

Code Grey to deal with patient aggressors at RCH (physically aggressive and self harming)

Note: Visitor aggressors mostly verbally abusive

Remedies

Verbal de-escalation

Physical and mechanical restraint

Sedation

TOBY MITCHELL

HOSPITALS- DUTIES AT LAW

Hospitals as employers

OHS

Safety of staff v safety of patients

Charter considerations

Where does legal liability lie?

How do Hospitals discharge their legal duties?

The consequences of failure

legislative changes to Mental Health Act

New crime of assault on hospital workers?

WHAT DO DOCTORS WANT?

RED CARD SYSTEM PROPOSED

My colleague Bill O’Shea (Alfred) proposed a red card system

Parliamentary hearing 15 August 2011

Proposal was to warn and ban offenders

What about true emergencies?

Danger for hospitals if patients discharge w/o seeing doctor especially with head injuries

Duty to inform of alternatives

Discharge at own risk form likely to be ineffective

Baillieu government reforms

AMA, LIV and Hospitals objected to PSOs in Hospitals

NEW LAW

Under the Justice Legislation Amendment (Protective Services Officers) Act 2011, Protective Services Officers (PSOs) given police powers

E.g. to arrest, without warrant, a person who has been released on bail if they believe that person has broken bail conditions.

The power to arrest without warrant The Act also gives PSOs the power to arrest, without

warrant, a minor who has refused to provide them with their name and address, where the PSO believes they have consumed alcohol

See s 118 Regulations state which places are designated e.g. railways

taxi ranks, bus stops, car parks What about hospitals?

S 118-POWER OF A PSO

An officer who has taken and subscribed the oath has and may exercise, in the execution of his or her duties, the same powers, authorities, advantages and immunities, and is liable to the same duties and responsibilities, as a constable appointed under this Act has and may exercise, or to which such a constable is liable, by virtue of the common law. In addition, an officer on duty at a designated place may exercise all the powers and has all the responsibilities given to or imposed on such an officer under this Act or any other Act

CODE GREY

The staff member:

Escalates - by calling code grey if the staff member fears for the safety of self and/or others

Seeks support - and guidance as needed from their manager

Learns for the future - if patient aggression is a factor (refer to Patient Restraint Policy).

The Manager:

Supports staff - the Manager ensures that the staff member has access to Employee Assistance Program, if needed

System improvement - identify and implement any needed systems changes such as identifying need for skilling staff to manage difficult patient behaviour.

Documentation - Riskman database.

RCH EMERGENCY RESTRAINT AND SEDATION AND CODE GREY

Procedure

The CODE GREY team should perform this procedure.

Team leader will designate roles before approaching patient (Code grey procedure).

All members should ensure own safety, with gloves and goggles.

Draw up medication See table above

Secure the patient quickly and calmly using the least possible force. At least 5 people are required - see Figure below

The patient should be initially held supine. In highly agitated patients, a face down technique may be used at the discretion of the team leader, but be aware of the increased risk of asphyxiation

Administer the drugs by intramuscular injection into the lateral thigh (Other options - ventrogluteal or dorsogluteal). Beware of the risk of needle stick injury. Further titrated doses of medication may be required depending on clinical response (If medication can be given IV this may be an option if the patient is safe to cannulate)

Post sedation care (See below)

Patients who have needed emergency restraint & sedation may also require mechanical restraint, although chemical restraint is preferred. Mechanical restraint should be provided by trained personnel only. See mechanical restraint RCH policy.

HUMAN RIGHTS

The least restrictive way of treating/restraining patients must be found

Restraint policy should reflect Charter rights

Cannot use restraint unless law permits or it is demonstrably able to be justified

E.g. doctor can exercise power under Mental Health Act over P who is mentally ill-involuntary detention

Severe Substance Dependence Treatment Act 2011

How do we manage difficult aggressive and violent patients visitors and others?

SECURITY GUARD- MANSLAUGHTER CHARGES

THE AGE 1 APRIL 2013

PRINCE HENRY’S HOSPITAL EXAMPLE

=The consequences of failure

Security used unreasonable force in ejecting a person from Hospital

Assault charges laid

=Full force of the criminal law

Note :Employer is not liable for the criminal acts of employees

(and doesn’t have insurance to cover)

DUTY OF CARE

OH&S laws

“so far as is reasonably practicable”

New model Work Health and Safety Act

Safe and without risks to health of “workers and others”

Arrangements for ensuring safety

Duty of care to patients

Duty in an emergency

How are these competing duties discharged?

MENTAL HEALTH ACT 1986 (VIC)

Deprivation of liberty is sanctioned by law but

Least restrictive manner possible-see s 4

Seclusion

Observations every 15 minutes

(No other Act prescribes this)

Review by Mental Health Review Panel

VCAT

Antunovic v Dawson & Norfolk Terrace Community Care Unit [2010] VSC 377

Writ of habeas corpus granted-no discretion to withhold

SECTION 4

It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that –

(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and

(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances

EMERGENCY DEPARTMENTS

By nature busy, frenetic pace and place

Trauma patients =

Agitated patients and visitors

Duty of care to patients and staff often in conflict

Consent not required to treat in an emergency

Patients at risk of harm if they refuse to wait

Role of security?

Role of police?

THE PROBLEM

LEGAL REMEDIES

No power of search and seizure for security officers

(No use of handcuffs)

“citizen’s arrest”-see s.459 Crimes Act 1958 (Note: Baillieu government initially suggested armed guards-see recent press-it has surfaced again)

Restraining orders in favour of a named person not the Hospital-of little use when a patient is unwell

Stalking offences

Use of “contracts”-effective if communicated well

Personal Safety Intervention Orders Act 2010

Role of security v role of police

LEGAL LIABILITY

Duty of care to patients

Duty of care to staff

Duty of care to others- visitors, sub contractors, agency

Personal actions for assault

Criminal actions for assault

Worksafe/OHS prosecution

Role of security-employees or contractors? (must show empathy)

Vicarious liability

Code Grey

What other policies? E.g restraint, Code Black

PROPOSED LEGISLATIVE CHANGES

New mental health legislative framework

Expected to commence 2014

The Attorney General announced in April that draft legislation will be introduced for longer sentences for people who attack police officers or emergency workers while they are carrying out their duties, including police, ambulance officers, fire-fighters, protective services officers, SES workers or lifesavers, as well as nurses, doctors or other staff in hospital emergency departments

See Media Release April 2012

QUESTIONS