Violence within healthcare facilities, particularly within emergency departments, is a widespread problem in Australia. Healthcare workers such as paramedics and nurses, as well as other patients and bystanders, face a real risk of injury as the result of physical violence in the workplace or healthcare facility. In March, Health Minister Cameron Dick estimated that in Queensland, 3,300 healthcare workers were physically assaulted in the 2014/2015 financial year.

Apart from injury or death, violence within a healthcare facility may also result in property damage and diminished trust in the health care facility. The problem is not a new one and is encountered globally.

In response to concerns surrounding the incidence of occupational violence within healthcare facilities, the Queensland Government established the Occupational Violence Prevention Taskforce in January 2016. It also launched a $1.35M advertising campaign to promote public awareness against physical violence against health care workers. The taskforce produced its report on 31 May 2016, making 20 recommendations to combat violence in Queensland hospitals and healthcare services. Proposed strategies to reduce occupational violence within the report include a unified definition of “occupational violence” across the Queensland public health system, a significant public awareness campaign, the implementation of a state wide capability and training framework and increased investigation of incidents of violence.

The Queensland report follows the 2015 Victorian Occupational Violence against Healthcare Workers report and initiatives introduced in New South Wales from 2005. In Victoria, there have been recent legislative amendments to increase sentences and include mandatory sentencing for offences involving violence towards healthcare workers sentencing laws. Members of the Australian Nursing and Midwifery Federation argues that increased penalties are not a deterrent on their own and will not be effective unless people are charged and prosecuted.

Causes of occupational violence in healthcare

Whilst the causes of occupational violence against healthcare workers are complex, common contributing factors include:

  • Violence of aggression triggered by certain medical conditions such as dementia, mental illness or head trauma.
  • Drug and alcohol affected individuals (According to one 2014 Study, people affected by drugs and alcohol are the most common source of violence in emergency departments).
  • Characteristics of certain individuals such as behavioural problems.
  • Organisational and environmental factors such as wait times (particularly in emergency departments and at the triaging stage).
  • Societal factors such as community attitudes towards violence and expectations of service.

Duty of care

A healthcare facility may be liable for a failure to provide adequate and reasonable security or safe systems of work within the facility to an employee, a patient or potentially to a third party.

It is uncontroversial that a healthcare employer owes a non-delegable duty of care to an employee to provide a system of work. This extends to ensuring that appropriate systems are established and maintained with respect to dealing with potentially violent patients.

Similarly, a non-delegable duty of care is owed to a patient with respect to the provision of health care.[1] At the point that a person has been seen in an emergency department by staff such as a triage nurse, they become a patient to whom and in respect of whom such a duty may be owed.

The nature and scope of the duty of care owed by a hospital or medical staff to non-patients within the healthcare facility remains relatively untested in Australia. While a healthcare facility may owe a duty to a third party with respect to foreseeable risks of harm (as an occupier), where those risks are caused by another patient or third party, the duty is more limited.

In Simon v Hunter and New England Area Health Service [2012] NSWDC 19, the District Court of New South Wales held that a duty of care was owed by treating medical staff to a man who was killed by a patient with a history of chronic paranoid schizophrenia. However, breach of duty was not established in this case because the decision of the patient’s treating doctor was not “irrational” so as to constitute a breach of the standard of care owed by professionals under the CLA.

The general rule is that at law, an occupier will not normally be liable for the criminal acts of a third party that occur on the occupier’s land, often referred to as the “Modbury immunity”.[2]

However, there are proposed exceptions to the application of the Modbury immunity where, for example, a “special relationship” exists between the plaintiff and the occupier.[3] A “special relationship” is said to exist where there is a significant level of control by one party over the other (i.e. employer/employee). There is some authority indicating that there are circumstances where the occupier has significant control over the criminal offender, where the Modbury immunity may not apply.

In addition, it has been proposed that the Modbury immunity may not operate where:

  • There is a high degree of foreseeability of the criminal conduct;[4] or
  • The occupier fails to control access to the premises.[5]

Given this, the Modbury immunity may not apply where criminal acts are reasonably foreseeable. Health care facilities may need to take reasonable steps, within the context of their budget, location and the nature of the services that are provided to minimise the potential risks caused by violence within the facility. Such steps might include:

  • the provision of full time security guards within the emergency department (particularly in larger emergency departments);
  • the provision of health and safety warnings for patients and visitors attending the emergency department, of the risk of harm from the violent acts of other visitors or patients.

Briana Smith also assisted in compiling this article.