In recent months there has been an increased media focus on the safety of mental health workers who need to deal with violent and aggressive patients.
A new decision of the NSW Industrial Relations Commission has clarified the steps that an employer must take in order to provide a safe system of work for its health workers.
Inspector Walker v On Track Community Programs Limited  NSWIRComm 87 was a prosecution for breach of s 8(1) of the Occupational Health and Safety Act 2000 (NSW); similar provisions exist in safety legislation around Australia.
Facts of the case
A mentally ill client killed a health support worker who attended the client’s residence.
The IRC heard that the worker had not complied with the employer’s Home Visiting Policy or the OHS Policy Manual. However, the employer had failed to properly assess the risks presented by this particular client – who was assessed as low risk when he should have been assessed as moderate to high risk of violent behaviour. No discharge summary – explaining the nature of his condition when last discharged from hospital – was available to assist the employee.
Considerations relating to penalty
The employer pleaded guilty to failing to provide a safe system of work without risk to health. In sentencing the employer, IRC Vice President Michael Walton found that it had been reasonably foreseeable that the client would pose a serious risk to health and safety due to his history of mental illness and his unpredictable and violent nature. The absence of a discharge summary increased the risk to employees because less information was available to protect them. The discharge summary should have been obtained and reviewed before providing the client with accommodation and allowing workers to deal with him – and it would have been fairly simple to do this.
Following the incident, the employer revised its policies to require the production of discharge summaries before accepting recommendations of clients for its services.
Vice President Walton also took into consideration that the employer had some safe work systems in place before the incident. The employer’s Home Visiting Policy and OHS Policy Manual addressed the steps that the worker should have taken before attending the client’s residence. The worker had failed to comply with these requirements – and it was unclear why he did not do so.
The maximum penalty for the offence at the time was $550,000. Vice President Walton fined the employer $115,000, following discounts for its early guilty plea, cooperation and the steps that it had taken post-incident to reform its safety system. If the offence occurred now, the maximum penalty could range between $500,000 and $3,000,000 under the Work Health and Safety Act 2011 (NSW).
Employers should review any policies that deal with workplace violence and aggressive and/or mentally ill clients. There should also be an emphasis on training employees about these policies to ensure that safety systems are properly adhered to at all times. The management of risks should be prioritised according to the hierarchy of controls.
There are a range of best practice guidelines provided by individual state regulators that provide assistance in implementing effective policies and systems to ensure the safety of employees, particularly when dealing with workplace violence.