NSW Health Loses Appeal in the Court of Criminal Appeal

In a significant blow to NSW Health, the Court of Criminal Appeal (CCA) has dismissed an appeal by the Western Sydney Local Health District against a decision of the District Court of NSW. The appeal centered around the application of section 17 of the Work Health and Safety Act 2011 (NSW), with NSW Health attempting to argue that the District Court had misinterpreted this section in relation to its duty to manage risks at Blacktown Hospital.

The case involved a tragic incident where a nurse was exposed to severe risks due to the behaviour of a patient, if anyone has been following this case and is confused as to why a patient is being blamed - see the opinion below. NSW Health had previously pleaded guilty to failing to ensure the safety of the nurse, but the appeal sought to limit the scope of the sentencing by arguing that only certain particulars related to eliminating risks should be considered. The CCA, however, rejected this argument, stating that the question posed by NSW Health did not raise a pure question of law and was too intertwined with the facts of the case.

This decision underscores the importance of comprehensive risk management in the healthcare sector, particularly in environments where workers are exposed to potential violence. The ruling sends a clear message that attempts to narrow the scope of liability through legal technicalities will not be entertained by the courts.

NSW Health must now face the full weight of sentencing without the limitations it sought to impose, a development that will likely have significant implications for how safety obligations are interpreted and enforced in the healthcare industry.

Opinion

I must say I am shocked by how much ground SafeWork NSW has conceded in this case. What began as a serious psychosocial hazards case, where two unnamed nurses tragically took their lives due to systemic bullying and harassment, has now been significantly diluted. This was still a serious case last year in SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 279, when Judge Scotting ordered the facts of the case to be suppressed, preventing the media from reporting on the facts to 'prevent prejudice to the proper administration of justice' (usually this is an argument made to prevent a Jury becoming biased, but whilst Safety matters are heard in Criminal Court, they are heard judge-alone, not before a Jury so I'm not seeing how suppressing it 'prevents prejudice to the proper administration of justice', in fact I have never seen a WHS case suppressed before this one).

Now, the case has been reduced to one where NSW Health may very well attempt to spin the narrative as though the actions of a third party (patient), not NSW Health, were responsible for the suicides. After years of dragging this out, the health department has pleaded guilty to amended facts—facts that suggest they failed to intervene in harassment by a third party rather than actively contributing to the bullying themselves.

It's disheartening to see what amounts to murder (a serious crime) being effectively reduced to the equivalent of common assault (a ‘slap on the wrist’ crime). In an industry like healthcare, where bullying is pervasive, a strong sentence against the health department could have sent a powerful signal to speak up and clean up the industry.

Instead, I fear that due to these amended facts, the Health Department might end up with a fine of maybe $400,000 at most, allowing them to spin this as being caught off guard rather than actively contributing to the harassment and bullying of their workers.

For those interested, the published cases (to date) in this matter are:

SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 279 Heard before Judge Scotting, media request for access to records denied to 'prevent prejudice to the proper administration of justice'.

SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 491

Heard before Judge Scotting, Prosecutor granted leave to file amended summons (change facts of the case).

SafeWork NSW v Western Sydney Local Health District [2024] NSWDC 174

Heard before Judge Strathdee, Plea of guilty accepted/published. Long hearing vacated due to plea of guilty. Matter referred to Supreme Court (CCA) for question of interpretation/application of law.

Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153

Heard before Justices Leeming; Payne; Chen, appeal dismissed. Justices ordered: "The question submitted by the District Court on 17 June 2024 should be answered “This question does not raise a question of law”". NSW Health ordered to pay costs.