In Victoria, the employer has a duty to notify WorkSafe Victoria immediately after becoming aware of an incident that results in the death of a person at a workplace under the management or control of the employer.1
This does not mean that all patient or resident deaths in a hospital or aged care facility are reportable to the regulator.
The objects of the Victorian Occupational Health and Safety Act include to secure the health, safety and welfare of employees and other persons at work; eliminate, at the source, risks to health safety or welfare of employees and other persons at work; and ensure the health and safety of members of the public is not placed at risk by the conduct of the undertaking by the employer.2
These objects seek to protect persons from risks arising out of work related activities and to prevent incidents which expose persons to risks to their health or safety.
There does not appear to be a duty to notify WorkSafe Victoria of an incident where a patient or resident passes away as a result of the normal advancement of their frailty or illness. Such an event is not work related and does not arise out of work related activities or the conduct of the undertaking of the employer. The death in these circumstances is a natural occurring event.
The cause of a death may not necessarily be readily apparent upon the happening of the event and whether it is work-related or has arisen out of work related activities. In circumstances where there is uncertainty about whether there is a duty to notify, the employer should notify the regulator so that the regulator can determine whether to investigate the incident as a work related death.
Under the harmonised work health and safety legislation the death of a patient or resident arising out of the conduct of a business or undertaking is a notifiable incident.3
A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.4 The death must arise "out of the conduct of the undertaking" to be a notifiable incident.
The facts and circumstances of each death must be assessed by the person conducting the business or undertaking5 (PCBU) to determine whether it has a duty to notify the regulator.
The Safe Work Australia Incident Notification Information Sheet, November 2015, states "An incident is not notifiable just because it happens at or near a workplace". This Information Sheet provides examples of incidents that may happen that have nothing to with work or the conduct of the business or undertaking. One example is a worker or another person who suffers a heart attack while at work which is unrelated to work or conduct of the business or undertaking.
If a patient is fatally injured during transfer in a sling as a result of the action or inaction of a health professional or carer, this is likely to be a notifiable incident.
The duty to notify under harmonised work health and safety legislation must be read in the context of the objects of the legislation. In general, the objects of harmonised work health and safety legislation seek to secure the health and safety of workers and workplaces by protecting workers and other persons against harm to their health, safety and welfare through elimination and minimisation of risks arising from work and conducting the business.
If a PCBU or employer is unsure whether a death is notifiable, it should contact the regulator for guidance. The PCBU or employer can also seek legal advice.
A failure to comply with the duty to notify the regulator of a notifiable incident can lead to a prosecution and financial penalty up to a maximum of approximately $50,000.6
In addition to work health and safety legislation, there may be other statutory notification requirements imposed on hospitals and aged care facilities that must be complied with. In the event that you are unsure of your legal duties and reporting obligations, you should seek advice and guidance from your legal adviser and the applicable regulatory authorities.