In Sydney Local Health District v SafeWork NSW (2019), Sydney Local Health District (SLHD) applied for an external review of a prohibition notice issued by SafeWork NSW.

The prohibition notice blocked SLHD from removing two 1.3-metre-high counters in an intensive psychiatric care unit at its mental health facility.

SLHD wanted to replace the existing counters with lower ‘touch down’ desks “to improve the therapeutic interaction between staff and consumers … enhancing staff and consumer engagement and ease of access”.

Concerned about the safety risk this could pose to staff at the unit, the NSW Nurses and Midwives’ Association made a service request to SafeWork NSW.

After a SafeWork NSW inspector attended the site, she issued improvement notices to SLHD to conduct risk assessments to prevent or control patient-related violence towards staff, before it conducted any renovation.

SLHD looked at a number of options to address the risk of patient aggression associated with counter, and a few months later decided to still install the ‘touch down’ desks.

The inspector then issued a prohibition notice to stop SLHD from removing the existing counters.

She told SLHD that “the overwhelming majority of the workers interviewed did not feel that the PCBU had adequately consulted them about the capital works, with many of the workers not even being aware of the decision”.

“Staff did not feel safe in the ward and the majority were very scared for their safety,” the inspector stated.

“I advised the PCBU that there appears to be a breakdown in communication with staff, and that there is a problem with the culture in the ward between workers and the management, and that this issue needs to be addressed.

“I raised concerns that there appeared to be a culture of fear among staff. I indicated that it was a concern that staff did not feel that they could speak freely or safely to management.

“I advised that the PCBU has a duty to address this issue, and that I had previously advised the PCBU of this issue.”

‘Modern approach’ cannot be at the cost of safety

In the NSW Industrial Relations Commission hearing, Commissioner John Murphy said it was “commendable” that SLHD wanted to enhance the therapeutic environment for its patients, but this could not override its obligation to ensure the health and safety of staff.

He noted SLHD’s submission that “the ‘therapeutic environment’ that forms part of the modern approach to the treatment of mental health consumers is closely integrated with safety for both consumer and staff”.

“That may well be so, but considerations of what is ‘reasonably practicable’ to ensure the health and safety of workers and others do not subjugate that obligation to the desirability of enhancing the therapeutic environment for patients,” he said.

SLHD also argued that retaining the counters would pose a greater risk to staff than removing them. Commissioner Murphy rejected this.

“In this respect, I accord greater weight to the opinions of the staff who actually work on the unit as to the risks posed to their safety, than I accord to the views of SLHD management, whose opinions are clearly conditioned by what is perceived by it to be an initiative designed to enhance the therapeutic environment for patients in the IPCU,” he said.

Commissioner Murphy dismissed the application.