Calling it as we see it: Tackling the hard cases that require reporting to WorkSafe

Jonathan Coates and Catey Boyce

The new Health and Safety at Work Act is a big deal for employers in the health sector.  That’s no surprise – it comes with a whole lot of new obligations.

One of the issues that we have been getting lots of questions about recently is notifying harm.   When things go wrong in hospitals, rest-homes and in other clinical settings, what needs to be notified to WorkSafe and what doesn’t?

What are notifiable events?

Before we tackle the hard cases, with some examples, here are some key points on what the new Act says about notifications:

  • The legislation says that you must notify WorkSafe if there’s a ‘notifiable event’ arising out of the business or undertaking.
  • A ‘notifiable event’ includes:
    • a death;
    • an injury or illness that requires admission to hospital for immediate treatment; and
    • other serious injuries or illnesses that require treatment including amputation of body parts, serious head or eye injuries, spinal injury, loss of bodily function and serious lacerations.
  • Failing to report notifiable events is an offence – and can result in significant fines.

Help, that all sounds pretty scary.  We all know how often people die in hospitals.  If we’re not careful, hospitals, rest-homes and other providers will be spending much of their time nervously phoning WorkSafe. Surely that’s not what is intended?

Pragmatism prevailing – at least for now

Fortunately, pragmatism has previously (largely) prevailed – and we are hoping will continue to do so.

WorkSafe had a policy under the old legislation that said WorkSafe would not take action against “employers of registered health professionals” where the serious harm (which was then the key phrase) “results from treatment administered to a patient, by or at the direction of a registered health professional”.

You will see that this is restricted to ‘registered health professionals’.  We all know that many health providers employ non-registered health workers to provide health services – and that not all non-registered health workers are working ‘under the direction’ of a registered health professional. Such employers take note.

WorkSafe has said that it is currently developing its notifications policies for the new Act.  In the meantime, the previous policy, modified to fit the terminology in the new Act, continues to apply.

Give me some examples

OK so let’s get off the fence and make some calls on some of the tough ones – based on the current WorkSafe policy being applied under the new Act.  Of course we will caveat this by saying cases always need to be considered on their own facts and that this blog isn’t a substitute for legal advice (we are lawyers after all). We will try and give a ‘notify’ or ‘don’t notify’ answer only – but sometimes we might not be able to resist saying a little more.

Notify:

  • Patient gets out of bed in the middle of the night to go to the bathroom; trips over a chair in the room, breaks hip requiring surgery.
  • Scrub nurse suffers serious cuts to the face when the surgeon throws a surgical instrument in theatre.
  • Mental health patient commits suicide by hanging using vacuum cleaner cord left on the ward.
  • Patient infected with hepatitis A because the steriliser failed to properly sterilise the surgical equipment.
  • Care worker suffers a serious back injury when turning a 130kg patient to alleviate pressure sores – More facts needed on the injury and treatment required.  May need to notify.

Don’t notify:

  • A surgeon nicks the bowel during removal of gallbladder.  Patient develops major infection after discharge and is returned to hospital.
  • Patient gets out of bed in the middle of the night to go to the bathroom; has a heart attack; cracks head open when falling and suffers a serious injury.
  • Anaesthetic technician has a nervous breakdown because of repeated bullying in theatre. NOTE: would need to notify if the technician requires immediate inpatient treatment.
  • New born baby dies when given nitrous oxide rather than oxygen because a nurse has connected the wrong tank to the pipe labelled ‘oxygen’.  NOTE: If this was equipment failure it would require notification.
  • Health professional suffers broken nose when patient with intellectual disability lashes out during attempt to restrain. NOTE: A more serious injury could require notification (including a very serious injury to the nose).

What does this all mean?

Keep in mind that just because an event must be notified does not mean that the employer/health provider has fallen short of what was accepted or has failed in its duty to keep people safe.  But, unsurprisingly, notifications will often lead to substantive investigations.

In truth, the current position on notifications is largely as it was before – based on the continuation of the previous policy.  However, if and when WorkSafe releases its new policy the answers to some of the questions above might well change.  We’ll keep an eye out and notify you if the position changes.

In the meantime, erring on the side of caution when deciding whether or not to notify is always a good idea.  Often, it isn’t clear cut whether a notification is required.

For further information contact one of the authors – Jonathan Coates or Catey Boyce.

Jonathan Coates
DDI: 03 550 0500
Email:  jonathan.coates@clarolaw.co.nz

Catey Boyce
DDI:  04 550 5726
Email:  catey.boyce@clarolaw.co.nz

This article is intended to provide a summary of the subject covered only and is necessarily general and brief. It is not intended as legal advice and nothing in the article should be relied upon without getting specific professional advice.