Today’s question raises many issues that have been discussed before but I’m happy to revisit them.  The question is:

Mental Health teams ordinarily perform assessments and treatments on a face to face basis. This is to enable a clear examination of a patient’s mental state, as well as evaluation of relationships (eg. In child psychiatry contexts). In the past month, my colleagues in various states have reported that they have been instructed to continue this face to face assessment of patients and families. Attempts to rapidly shift the modality of assessment to online platforms have been organisationally slow, without the usual agility one might see/hope for in a public health disaster context.

My questions to you are:

  1. Is there a Duty of Care by hospitals toward their workers (employees/contractors)?
  2. What would be a reasonable standard of care to discharge that duty? Example is outpatient child psychiatry assessment and treatment.
  3. If a clinician becomes sick from Coronavirus, or a patient/sibling/elderly family member becomes sick, what is the extent of liability of the Hospital?
  1. Is there a Duty of Care by hospitals toward their workers (employees/contractors)?

The answer to that question is a self-evident ‘yes’. The duty of an employer is a well established duty that needs no authority.  Equally if a health service is contracting with a health professional there will be a duty to provide a safe workplace to the extent that the health service is in control of the workplace. (A health service is not in control of the practitioner’s private room etc).

  1. What would be a reasonable standard of care to discharge that duty? Example is outpatient child psychiatry assessment and treatment.

That’s easy to answer in broad terms, impossible to answer in specifics.  Having identified that there is a duty of care, the reasonable employer has to consider the risk to the staff (what is the chance of them catching covid-19 and how bad might it be) against the need to continue with the task at hand and costs of remediation. Some things just cannot be done remotely.  An ambulance service may owe a duty of care to its paramedics.  It would be safer to keep them in the station and try to triage people by videoconference and arrange for a taxi if they need transport to hospital – but that’s not reasonable even though it would make the workplace safer (see COVID-19 and paramedic work health and safety (April 1, 2020)).

What does the employer have to do? In Wyong Shire v Shirt [1980] HCA 12, Mason J of the High Court said (at [14]):

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

That formula has been largely restated in legislation, for example in Queensland, the Civil Liability Act 2003 (Qld) s 9 says:

(1) A person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

The obligation under the model Work Health and Safety Act 2011 (adopted in every jurisdiction other than Victoria and Western Australia) is not a duty to ensure the health and safety of workers; it is a duty (s 19) ‘ensure, so far as is reasonably practicable, the health and safety of: (a) workers…’. The addition of the words ‘so far as is reasonably practicable’ is vitally important. Section 18 says what is ‘reasonably practicable’

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a)        the likelihood of the hazard or the risk concerned occurring; and

(b)       the degree of harm that might result from the hazard or the risk; and

(c)        what the person concerned knows, or ought reasonably to know, about:

(i)         the hazard or the risk; and

(ii)        ways of eliminating or minimising the risk; and

(d)       the availability and suitability of ways to eliminate or minimise the risk; and

(e)        after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

The standard of care is ‘did the employer consider the various factors listed above when coming up with their policy?’   Given the advice on social isolation is it reasonable to continue face to face consultations, 1.5m apart, with hand sanitiser on the table, and not with people who have returned from overseas in the last 14 days, not been in contact with someone with COVID-19 etc.  As noted above, paramedics still have to actually go and see people, doctors may be encouraging tele-health consultations but that cannot replace every consultation where there is a need to physically examine the person. Does the benefit of a face-to-face consultation mean that the alternatives are not ‘reasonably practicable’? If my correspondent is a mental health professional he or she can answer that, not I (noting that how one sees the costs and benefits depends upon where you stand (see again COVID-19 and paramedic work health and safety (April 1, 2020)).

  1. If a clinician becomes sick from Coronavirus, or a patient/sibling/elderly family member becomes sick, what is the extent of liability of the Hospital?

If a staff member becomes sick they would be entitled to workers compensation (see Workers compensation and COVID-19 in South Australia (March 28, 2020) and Compensation for contracting COVID-19 whilst volunteering – NSW SES (March 23, 2020)).  Workers compensation is a no fault, statutory scheme. It has nothing to do with the concept of ‘duty of care’ or ‘standard of care’ or negligence.

If a person contracted the disease whilst taking part in a consult the question asked, and not answered above, would be relevant. Did the practice do what was reasonable to control the risk? That question does not require that the risk is reduced to zero – that may not be feasible (return to my example of keeping paramedics in the station).

A critical question would be ‘from whom did the person contract the disease and what could or should the health service have done about it?’  If it’s a ‘patient/sibling/family member’ are you imaging they caught if off the patient in which case how is the health service responsible for that?

If they caught it off the practitioner then the practitioner and the health service would have duties to follow the guidance – see for example Advice for Health Care Workers: When you can and cannot work (Australian Department of Health, 2020). And was the decision to insist on face-to-face consultations reasonable taking into account all the matters listed in the answer to question 2.

Remember proof of injury is not proof of negligence. Just because someone gets the disease does not mean anyone has been negligent.