Introduction

It is common for health, aged care and life science companies to experience bullying and harassment when dealing with complaints.  This can cause stress and anxiety for staff in the work environment.

Key WHS Legislation

The key work, health and safety legislation relating to this situation is the Work, Health and Safety Act 2011 (NSW) (WHS Act) and Work Health and Safety Regulation 2011(NSW) (WHS Regulations). There is similar legislation in other States and Territories.

Purpose of Work, Health and Safety Act 2011

The WHS Act provides the framework to protect the health, safety and welfare of all workers at work, and of other people who might be affected by the work. The WHS Act aims to protect the health and safety of workers and other people by eliminating or minimising risks arising from work or workplaces.

In furthering these aims, regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

Under the WHS Act, a ‘workplace’ is any place where a worker goes or is likely to be while work is carried out for a business or undertaking. This may include offices, shops, construction sites, vehicles, ships, aircraft.

To this effect, a client’s home in relation to home care would be considered a ‘workplace’ to which the WHS Act and WHS Regulations would apply, whilst workers are performing their duties.

Importantly, the WHS Act imposes duties on other persons at the workplace. Section 29 of the WHS Act relevantly states:

Any person at a workplace, including customers and visitors, must:

(a) take reasonable care for his or her own health and safety;

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting a business or undertaking (PCBU) to allow the PCBU to comply with the WHS laws.

This WHS duty would apply to family members of the care recipient visiting the workplace of a health service provider, where their actions affect the health and safety of health care workers.

Primary duty of care – Health care providers

Health care providers must ensure, so far as is reasonably practicable, the health and safety of:

• workers engaged, or caused to be engaged by the person; and
• workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

Healthcare providers must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

Without limiting the above, health care providers must ensure, so far as is reasonably practicable, the provision and maintenance of a work environment without risks to health and safety.

The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

What is “reasonably practicable” is expanded in the WHS Act.  The courts have on numerous occasions noted that what is “reasonably practicable” is to be determined objectively. This means that a duty holder must meet the standard of behaviour expected of a reasonable person in the duty holder’s position and who is required to comply with the same duty. This objective test is demonstrated by the requirement in section 18 of the WHS Act to take into account what the person ought reasonably to know.

As part of the objective test, the courts will look at what was reasonably foreseeable by someone in the position of the duty holder at the particular time. Given this, any significant incident such as verbal abuse or bullying and harassment by the assailant towards a healthcare worker, would most likely be viewed as “reasonably foreseeable”, which could result in the healthcare provider being in breach of its primary duty of care obligations. To minimise this risk, it is critical that the healthcare provider’s documents, actions and reviews are all recorded. These records must focus on identifying the means to either eliminate or minimise the current risks identified in servicing the client, to an acceptable level of risk.

Potential Bullying and Harassment of workers

Whilst an assailant is not an employee of the healthcare provider, there are times when they may be reasonably expected to be present at the facility. Hence the assailant is a visitor to the workplace, and it is possible that their actions could be classified as verbal abuse, bullying and harassment of workers.

Guidance material from Safe Work Australia states bullying is a hazard because it may affect the emotional, mental and physical health of workers.51 The risk of bullying is minimised in workplaces where everyone treats each other with dignity and respect.

The WHS Act defines ‘health’ as both physical and psychological health. This means the duty to ensure health and safety extends to ensuring the emotional and mental health of workers. This duty would apply to both the health care provider and the client/patient and his/her family, as both are directly involved with the ‘workplace’.

What is workplace bullying?

Workplace bullying is repeated, unreasonable behaviour directed towards a worker or a group of workers, that creates a risk to health and safety.52

• “Repeated behaviour” refers to the persistent nature of the behaviour and can refer to a range of behaviours over time.
• “Unreasonable behaviour” means behaviour that a reasonable person, having regard to the circumstances, would see as victimising, humiliating, undermining or threatening.

Bullying can also be unintentional, where actions which, although not intended to humiliate, offend, intimidate or distress, cause and could reasonably have been expected to cause that effect.

Sometimes people do not realise that their behaviour can be harmful to others. In some situations, behaviours may unintentionally cause distress and be perceived as bullying.

Impact of workplace bullying:

Bullying can be harmful for the workers who experience it and those who witness it. Each individual will react differently to bullying and in response to different situations. Reactions may include any combination of the following:

• distress, anxiety, panic attacks or sleep disturbance;
• physical illness, such as muscular tension, headaches and digestive problems;
• reduced work performance;
• loss of self-esteem and feelings of isolation;
• deteriorating relationships with colleagues, family and friends; and
• depression and risk of self-harm.

Those who witness bullying may experience guilt and fear because they cannot help or support the affected person in case they too get bullied.

Agreements and managing expectations

In some cases, such as aged care and disability services, it is possible to have an agreement setting out expectations and responsibilities.  For example, the User Rights Principles 2014 (Cth) under the

Aged Care Act 1997 (Cth) sets out the following responsibility for residential aged care:

“Each care recipient has the following responsibilities:

(a) to respect the rights and needs of other people within the residential care service, and to respect the needs of the residential care service community as a whole;

(b) to respect the rights of staff to work in an environment free from harassment;

….”

Further, it can be appropriate to impose conditions of entry to your premises, setting out acceptable standards of behaviour and requiring compliance with work, health and safety laws or requiring treatment to be provided under certain places with certain conditions such as additional security personnel. Adequate notice of the conditions of entry is required.

In addition, in order to manage the situation, certain complaints can be re-directed to particular senior persons within the organisation or to its external lawyers or the relevant external complaint bodies, such as the, Australian Health Practitioner Regulation Agency, the Health Care Complaints Commission or the Aged Care Complaints Commissioner.

Holman Webb has developed a draft Code of Conduct for Residential Aged Care in consultation with Aged and Community Services Australia (ACSA), which is free for clients and ACSA members.  Please contact Alison Choy Flannigan at Alison.choyflannigan@holmanwebb.com.au for a copy.

Inclosed Lands Protection Act 1901 (NSW)

The common areas of a public or private hospital or an aged care facility may be “private property”, to which the Inclosed Lands Protection Act 1901 (NSW) and the laws of trespass to property might apply to restrict access to non-residents if they infringe any policy or code.53

Apprehended Violence Orders

If justified, providers can apply for an Apprehended Violence Order restricting access to certain staff of the facility.

Policies and Guidelines

The relevant NSW policy for public hospitals, which is also a useful guide for other health care providers, is “Preventing and Managing Violence in the NSW Health Workplace – A Zero Tolerance Approach”.54

51 https://www.safeworkaustralia.gov.au/bullying
52 Dealing with Workplace Bullying -A Worker’s Guide. Available: https://www.safeworkaustralia.gov.au/bullying
53 Halliday v Neville (1984) 155 CLR 1, 8; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.
54 www1.health.nsw.gov.au/pds/ActivePDSDocuments/PD2015_001.pdf