DPP v Melbourne Health [2021] VCC 407 (9 April 2021)

Last Updated: 28 April 2022

Case No. CR-20-01338

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REASONS FOR SENTENCE

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Subject: Criminal Law

Catchwords: Failing to ensure that persons other than employees not exposed to risks

Legislation Cited: s23(1) Occupational Health and Safety Act 2004 Vic

Sentence: Fined $340,000 with conviction

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HER HONOUR:

1 On the morning of 23 September 2013, Mr Peter Nolan tragically died by suicide, by hanging himself in his room. At the time, Mr Nolan was in the care of the Broadmeadows Aged Persons Mental Health Unit, which is operated by Melbourne Health. Melbourne Health has pleaded guilty to one charge of failing to ensure that persons other than employees are not exposed to risks. The maximum penalty for this offence is a fine of $1,299,240.

2 A summary of prosecution opening was read and tendered on the plea and I will briefly summarise the circumstances of the offence. At about 2:00 am on 21 September 2013, Mr Nolan was involuntarily admitted into the Broadmeadows Aged Persons Mental Health Unit, (“The Broadmeadows Unit”). He had been transferred there from the Royal Melbourne Hospital Emergency Department and his admission arose out of earlier suicide attempts at his home that month. Upon arrival at the Broadmeadows Unit, Mr Nolan was placed on 15 minute visual observations and settled in room 8.

3 At about 1:00 pm on 21 September, Mr Nolan's wife and daughter visited him in his room. Mrs Nolan observed a blue sheet being used as a makeshift curtain on the left-hand side of the window. The sheet was attached to the curtain rail by a knot. The sheet, was a slide sheet, which is a type of strong slippery nylon sheet, used to move patients. At this time Mr Nolan was an involuntary patient.

4 It is unknown when the slide sheet was placed in that position or which member of the staff had placed it there. It was not uncommon for patients to pull down curtains in their room and there had been prior occasions where bed sheets had been used to make makeshift curtains. Prior to the incident Melbourne Health had not given any directions to nursing staff in relation to the use of temporary curtains.

5 Later that evening, still on 21 September, at around 8.30 pm, Mr Nolan underwent a further psychiatric assessment and his status as an involuntary patient was not upheld. He remained on 15 minute visual observations. On the evening of 22 September, Mr Nolan went to his room at around 10 pm. At around 4.15 am, he approached the nurses and requested medication to help calm him down. He was given the requested medication and returned to his room. From that point until approximately 6.30 am, staff observed Mr Nolan in his bedroom. At about 6.45 am a nurse checked on him and he appeared to her to be asleep. At approximately 6.53 am the nurse was outside the Unit, checking on another patient, when she observed Mr Nolan's head against the window. She ran to room 8 and found Mr Nolan hanging by his neck with the blue slide sheet tied around his neck.

6 She tried unsuccessfully to undo the sheet and then the Code Blue team and 000 were called. The Code Blue team arrived at approximately 7:00 am and commenced CPR, once Mr Nolan had been brought down. Ambulance staff arrived and took over at approximately 7.05 am. CPR was ceased approximately 10 minutes later and at 8:50 am, Mr Nolan was pronounced deceased.

7 Eleven victim impact statements were tendered on the plea and some were read aloud. I want to make clear that there is nothing this court can do or say that will bring Peter Nolan back or heal his family's significant grief and pain, that they continue to experience. The sentence I will impose is in no way a measure of the worth of Peter Nolan's life. His life was priceless. The sentence I must impose is a reflection of a large number of factors, which I as a judge am required to take into account by law, only one of which is the impact on the victims.

8 The 11 victims all wrote movingly of their love for Peter Nolan and the great loss they have experienced. Peter Nolan was loved by his friends and family. He was proud of his children. He was an involved father who loved sport and took his children on numerous outings and adventures. He was kind, warm, generous, outgoing and likeable. He was also a religious man and described as caring and charitable to all. He worked hard all his life and enjoyed caring for others and helping them wherever he could. As well as a father, he was a much loved grandfather and uncle. He had nine children altogether, not all of whom survived, and 13 grandchildren. All the victims have suffered and are still suffering in their own way. They all miss him terribly.

9 There has been substantial delay in prosecuting this matter. On the day of Mr Nolan's death, the police attended at the Broadmeadows Unit and Mr Nolan's death was reported to the Coroner. In July 2014 WorkSafe became aware of Mr Nolan's death, because of contact by one of his sons. WorkSafe attended the Broadmeadows Unit on 23 July 2014 and again on 5 August 2014 and made enquiries into the incident. No proceedings were brought by WorkSafe at this time. In February 2016, Mr Nolan's death was the subject of a Coronial Inquest and the Coroner's findings were delivered approximately 18 months later on 29 June 2017. In July 2017, Mr Nolan's son again contacted WorkSafe requesting that the investigation into his father's death be reopened. In September 2017, WorkSafe re-opened its investigation and ultimately a prosecution commenced in June 2019. The Director of Public Prosecutions was required to provide consent as the charges were laid well after the limitation period had expired.

10 Melbourne Health offered to plead guilty to the charge on the indictment back on

2 September 2019. The offer was initially rejected, but later accepted and in the circumstances, Melbourne Health has pleaded guilty to the single charge at the earliest reasonable opportunity. I also note that Melbourne Health co-operated with the police, both WorkSafe investigations and with the Coronial Inquest.

11 I turn now to the accused in this matter, Melbourne Health. Melbourne Health is the second largest public health service in Victoria and serves a population of more than one million people, who live in the inner northern and western areas of Melbourne. In addition, Melbourne Health serves regional and rural Victoria as well as parts of southern New South Wales. Sitting within Melbourne Health is North Western Mental Health, which is the relevant Unit here. North Western Mental Health is Victoria's largest publicly funded mental health service, caring for youth, adults and older people who are experiencing, or at risk of developing a serious mental illness. At the time of the incident, North Western Mental Health operated beds across a number of facilities as well as community mental health clinics located at various hospitals and other locations. The Broadmeadows Unit had 19 beds and in 2013 treated a total of 143 inpatients.

12 At the time of the incident, the risk of ligature points and ligatures was well understood. North Western Mental Health had introduced an audit procedure, concerning ligature risk, after becoming aware that independent audits were conducted in different institutions and there was a need for a uniform approach. According to the 2012 ligatures audit procedure document, in terms of good practice, two or more clinical staff from an area from a service, other than the one in which they work, should audit each clinical area. This will reduce the effects of over familiarity with the environment. There was also a relevant user guide describing the process which should be followed in more detail.

13 It was submitted on behalf of Melbourne Health that over familiarity explains this utterly tragic and preventable incident. Melbourne Health accept that ligature risks always loom large and are well understood. They had sought to address and remove that risk over the years in various forms. They accept that their system failed.

14 Somewhat sadly, the Broadmeadows Unit, was originally designed to be as home-like as possible for elderly patients who may have dementia, so as to minimise the distress that might be experienced by an elderly person on admission to a hospital. When it was designed and built almost 30 years ago, not by Melbourne Health, touches such as curtains were deliberately included.

15 Since this incident Melbourne Health took steps to ensure that such a tragedy would not be repeated. The audit processes were revised to make clear that it was no longer a case of what should happen on an audit, but what is required. This seeks to address the risk of over familiarity and persons failing to appreciate risks that would be obvious to an outsider. Staff are involved in the review of units that are not under their management, so assessments are made by people with fresh eyes. The audit and risk assessment process has been continually reviewed and updated, most recently in January 2021. All patients slide sheets are now correctly stored and kept under lock and key.

16 Melbourne Health had all curtains removed at their facilities and initially replaced with specially designed and custom-made magnetised tracks. The magnetised tracks meant that under pressure the curtain would detach. This system was implemented but had its own issues, as the curtains would sometimes come down with simple force. In late 2018 or early 2019, all curtains and tracks were removed. All windows were replaced with two panes of glass and between those panes are venetian blinds that are fully enclosed and operated externally. This has removed the risk of curtains or curtain tracks being able to be used as a ligature or ligature point. This system has been implemented by Melbourne Health at their Broadmeadows Unit and also at other facilities they operate.

17 I turn now to other matters.

18 It was submitted on behalf of Melbourne Health that this offence is properly characterised as mid-range of seriousness. It is not a case where there was no system, rather it is a case where the system failed and the risk was not identified. Melbourne Health noted that when WorkSafe attended, no improvement notices were issued and no action was taken.

19 It was submitted, correctly, that the gravity of the breach is measured by two factors: the seriousness of the breach itself and the extent of the risk of death or serious injury, which might result from the breach. This second factor itself breaks into two factors - the likelihood of the occurrence of an event as a result of the breach, and the potential gravity of the consequence of such an event. It is not disputed by anyone that the potential gravity here is of the greatest type, as evidenced by what occurred. Mr Peter Nolan, at a place where he should have been safe, was able to take his own life.

20 Turning to the likelihood of the occurrence of such an event, it was submitted on behalf of Melbourne Health that the risk presented by Mr Nolan had lessened since his arrival, as he was no longer an involuntary patient. In my view, this submission overlooks the fact that the charge is between dates, covering the 21st to the 23rd September 2013. The sheet was there when Mrs Nolan visited at lunchtime on the 21st, at which time Mr Nolan was an involuntary patient. His involuntary status was revoked at around 8.30 pm on the 21st. On the 22nd and 23rd, despite his involuntary status not continuing, Mr Nolan was still in the very early stages of his arrival into the Unit. He still required 15 minutes observations. I consider in the circumstances that the likelihood of such an event such as what occurred, occurring, was high.

21 Melbourne Health has pleaded guilty at the earliest reasonable opportunity and this entitles them to a meaningful sentencing discount. Melbourne Health has no prior convictions and nothing subsequent or pending. Through their plea, they have taken responsibility for their offending and shown a willingness to facilitate the course of justice. They have taken the matter very seriously, and sought to address the issues that led to this tragic event. Currently, a plea of guilty carries an additional utilitarian or practical benefit, as jury trial listings in this court remain adversely impacted by the COVID-19 pandemic. Melbourne Health's plea of guilty has also spared Mr Nolan's family the additional stress, trauma and uncertainty of a criminal trial.

22 Melbourne Health apologised to the family of Mr Nolan on the plea for all the hurt, loss and suffering they experienced and continue to experience. Whilst this may sound hollow to the family, I do accept that Melbourne Health are genuinely apologetic and remorseful for what occurred to Mr Nolan when he was in their care. Whilst Melbourne Health is a corporate entity, it is made up of individuals who work in the public health system and are committed to caring for some of Melbourne's most vulnerable people. At the time of the plea, Melbourne Health was receptive to any compensation claims and agreed to pay the costs of Mr Nolan's funeral. Between plea and sentence, the quantum of compensation has been agreed between Melbourne Health and four of the victims, and I will make those compensation orders.



23 In all the circumstances Melbourne Health may be properly described as a good corporate citizen. They work hard to provide services that seek to meet the mental health needs of the community.

24 I accept there has been substantial delay in this matter, through no fault of Melbourne Health. Whilst Melbourne Health is a corporation and it could not be said that they have had the matter hanging over their head in the same way that that expression is used when dealing with an individual accused, the lengthy delay is still a relevant mitigating factor. I accept that for some of the staff and management of Melbourne Health, who were involved in this incident, both at the time and in its aftermath, the delay in prosecution was likely a source of stress. More relevantly, in the intervening years, Melbourne Health has used the opportunity to address the issues that led to this tragedy, improved their systems and changed the design of their facilities.

25 The prosecution submitted that the most significant sentencing consideration is general deterrence. That is, the need to send a message to employers everywhere, that a failure to eliminate or mitigate safety risks will attract significant punishment. The prosecution submitted that the breach is objectively serious in the context of this particular workplace. The prosecutor submitted that formal identification and management of ligature risk, is well understood and commonplace across mental health units. Here, a ligature risk was created at a place where people are suffering mental health problems, including suicidal ideation. The prosecution accept that Melbourne Health did have a system in place, but submitted that the risk here was obvious and should have been picked up by those in charge. A slide sheet should never have been put up as a temporary curtain.

26 In all the circumstances I do regard this as a reasonably serious example of this offence. It is true that it lacks the type of aggravating features that one sometimes sees in Occupational, Health and Safety cases, such as a deliberate cutting of corners, a cavalier attitude to risk, or putting profits above safety. However, the Broadmeadows facility was, by its very nature, going to be occupied by persons who are very vulnerable and with high mental health needs. Mr Nolan was such a person. Having a slide sheet tied to a curtain rail represented not just an obvious and well-documented ligature risk, but gave a person in the position of Mr Nolan the very means to take his own life. The slide sheet was there at least by the time Mrs Nolan visited on the 21st and remained there throughout, until Mr Nolan used it to take his own life early on the 23rd. It was clearly visible, presented an obvious risk and the risk could have been easily, cheaply and quickly remedied.

27 The prosecution referred me to two cases, which they submitted had some factual similarity. I found those cases to be of some assistance, but of course there are differences and ultimately every case turns on its own unique facts and circumstances. I note in one of those cases, the fine imposed was without conviction.

28 In this case, given Melbourne Health's lack of prior convictions, the delay since the offence occurred and the changes made by Melbourne Health in the intervening years. I do not place much weight at all on specific deterrence as a relevant sentencing factor. However, general deterrence is of real significance here. It is important to send a message to all employers that if they fail to eliminate or mitigate risks to health and safety, then they should expect to be charged and receive a significant penalty. Employers who operate workplaces owe a clear duty, not just to their employees but to all the other persons who occupy the workplace from time to time. Employers need to be proactive and constantly vigilant when it comes to eliminating or reducing risks to health and safety. The need for vigilance is especially great when the other persons who occupy the workplace are likely to be extremely vulnerable due to mental health needs. They are there because they need to be cared for and are in no position to identify or assess the risks themselves.

29 I turn to the issue of whether a conviction should be recorded. On the one hand, this is Melbourne Health's first offence, they pleaded guilty, it was over seven years ago and in the intervening years they have made necessary changes and there have been no further incidents. On the other hand, this was a significant departure from their statutory duty to ensure a safe workplace. Mr Nolan was able to take his own life and the impact on his family has been profound. In my view, it is necessary to impose a conviction here, to properly reflect the gravity of the offence, and give full weight to general deterrence, denunciation and punishment. The offending is too serious to be dealt with by way of a without conviction penalty.

30 Taking into account all the matters I have just been through, the sentence of the court is as follows:

Melbourne Health is convicted and fined the sum of $340,000.

31 I will make the compensation orders sought and I am obliged to state pursuant to s.6AAA(1B)(2) the sentence I would have imposed if Melbourne Health had not pleaded guilty but had been convicted after running a trial. I declare that but for the plea of guilty, I would have imposed with conviction a fine of $520,000.