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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-11-29 Daily Xml
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CRIMINAL LAW CONSOLIDATION (AGGRAVATED OFFENCES) AMENDMENT BILL

Introduction and First Reading

Mr HAMILTON-SMITH (Waite) (10:33): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

Mr HAMILTON-SMITH (Waite) (10:33): I move:

That this bill be now read a second time.

This is a very important matter for the South Australian parliament and for all South Australians. The bill I am moving today seeks to increase the penalties for those who violently strike nurses, doctors and other clinical staff wherever they may be working. For too long now our nurses and clinicians have had to endure situations where they are not safe in their own workplace, and this parliament owes it to those working in our hospitals to fix this problem and to make the penalties tougher. Occupational violence is particularly prevalent within the health system in this state and internationally. Health systems face unique challenges in addressing violence and security because of the difficulty of trying to balance the safety of staff with the duty of care for patients. A hospital is a very difficult working environment; there are enormous pressures.

It has been put to me by stakeholders—some of whom are present today—that there has been at times throughout the health system a culture of denial about the extent of this problem. Health organisations tend to adopt this culture of denying and ignoring responses, and there are perceived disincentives for middle management to report assaults. Health practitioners are, therefore, often reluctant or actively discouraged from reporting or addressing acts of violence in the health workplace.

A recent University of Adelaide study found nurses were often reluctant to report violence because of:

...individual desensitization to violence in the workplace, nurses considering violence to be a part of the job, presence of mitigating and/or contributing factors, fear of retaliation from management/superiors and a lack of support from hospital administrators.

I acknowledge in making that reference the work of April Stanley-Banks, a nurse from the University of Adelaide, who, in her research paper of December 2011, called 'Why do nurses electronically chart violence alerts on, or "flag" emergency patients?' made a particularly useful contribution to this debate on behalf of the nursing profession.

Anecdotally, violence in Australian hospitals has become worse along with the shift of mental health care into the community. This has been supported by research and I quote from J. Forster, in the Medical Journal of Australia, the following:

In more recent years, deinstitutionalisation and mainstreaming of psychiatric services within acute-care hospital settings have meant that the staff resources and level of experience available to manage violence have been reduced. Further, as mental health treatment and care continue to move towards a community focus, patients needing inpatient treatment are sicker, with the result that violence towards health care professionals is increasing.

I want to make reference to what are termed 'code black' events in our healthcare system. The Minister for Health, the honourable member for Kaurna, in acknowledging the extent of this problem gave us some information on this on 3 July this year, when he reported that whole of hospital code blacks from July 2010 to June 2012 had been 5,545, but from July 2011 to June 2012 had risen to 6,120. In emergency department only code blacks, there had been an increase from 3,471 to 3,604 over the same time frame.

In answers to questions on notice, the health minister advised the parliament that the total of reported code black events in metropolitan hospitals reported during the period 1 July 2011 to 30 June 2012 was as follows: Flinders Medical Centre, 1,548; Royal Adelaide Hospital, 1,567; The Queen Elizabeth Hospital, 638; Lyell McEwin Hospital, 1,780; Modbury Hospital, 302; Noarlunga Hospital, 190; and the Repatriation General Hospital, 95.

Each of these code black reports indicates an incident where a staff member felt it was necessary to call for security assistance because their safety was compromised. These statistics are unlikely to fully represent the current situation as many incidents go unreported or are handled by the staff members themselves on the spot.

There was even an incident at Lyell McEwin Hospital some years when STAR Force was called out to deal with a violent offender in the emergency department in very dramatic circumstances, reported at the time by the media, and as a consequence of which a number of staff experienced considerable stress requiring short-term or longer term leave arrangements to be made for their ongoing care.

This is a significant contribution to staff burnout. The failure to prevent and respond appropriately to assault within the healthcare system has arguably contributed to a high level of attrition and burnout amongst staff, particularly nurses. As well as the psychological and emotional cost for the staff affected, this is creating additional risks for medium-term workforce planning in the health system, with many nurses prematurely leaving the profession or being dissuaded from pursuing a career, and I refer the house to P. Holland in the Monash University Journal, February 2012.

There is a need for legislation to tighten the penalties for offenders in such cases. The Victorian parliament's Drug and Crime Prevention Committee examined and tabled the 'Inquiry into Violence and Security Arrangements in Victorian Hospitals' in December 2011. One recommendation emanating from that report was this:

The Committee recommends that a specific offence of assaulting, obstructing, hindering or delaying a hospital or health worker or a licensed security guard or emergency worker in the execution or performance of their duties be considered in Victoria.

It should be acknowledged that legislation is only a single tier of a multifaceted approach that should be considered by the government, including occupational health and safety management, staffing quotas, staff structures, training, incident review, reporting methods and peer support. Top-down, one size fits all approaches to tackling occupational violence are often insufficient, and I am not suggesting that the tougher penalties in this bill will solve the problem. Other measures will be needed.

Nonetheless, as legislators it should be our imperative to facilitate the policy process along, where possible. Legislation sends a clear message to health professionals, management and the broader community that violence against clinical staff in the health system is particularly grievous and unacceptable.

This bill that I am moving today contains certain offences within the Criminal Law Consolidation Act which distinguish a maximum penalty for aggravated offences from those of basic offences. Aggravated offences are defined by the act:

where a provision differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to an aggravated offence is a reference to the offence in its aggravated form.

Two such examples of other conditions where offences may be determined aggravated include: offences against spouses and domestic partners (current or past) or children of the offender; and offences against on-duty police, prison officers and other law enforcement officers in the course of their duties.

Similarly, the bill adds a subsection to section 5AA of the act to expand what constitutes an aggravated offence to include an offence where the victim is a health practitioner in the course of their duties within a hospital or health service, and I have taken a broad view of the term 'health service' which is explained in the bill. The added subsection as detailed in the bill talks about the victim acting in the course of his or her duties and the health practitioner at a hospital or health service and so on.

Currently, under the Criminal Law Consolidation (General) Regulations 2006, similar provisions already exist for an offence against an emergency worker, including ambulance officers amongst others, to be deemed an aggravated offence within an accident or emergency department. This bill will extend the provision for protection in the remainder of the hospital and all health services. It codifies protection for all health practitioners, including paramedics and ambulance officers.

The bill takes account that some offenders have mental impairment or are under the influence of alcohol or drugs. Seeking a conviction in a healthcare setting is problematic. It may, in many cases, be that the perpetrators suffer mental health issues, such as dementia. The bill does not seek to amend the way that the police and the courts currently assess whether a person has a requisite mental capacity and the intent to commit an offence where intent is an element of the offending.

Existing provisions under section 5AA of the act already specify requirements as to knowledge and intent. The courts and the police will work through those issues as they always have done. There are definitions in the act which explain issues to do with health practitioners, health professionals, health practitioner regulation, national law, etc., and brings into its determinations Aboriginal and Torres Strait Islander health practice, Chinese medicine, chiropractic, dental (including the profession of dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist), medical radiation practice, nursing and midwifery, occupational therapy, optometry, osteopathy, pharmacy, physiotherapy, podiatry and psychology. Paramedics are currently not included under this regulation, though many are campaigning for registration and are therefore detailed separately in the bill.

I can go on and talk about the extent to which penalties will be increased by this measure. I will give some examples. Acts endangering life or creating risk of serious harm against a nurse would be increased from 15 to 18 years, acts endangering life or creating risk of serious harm from 10 to 12 years, and indecent assault, from eight to 10 years. There are many other examples depending on the offence.

I would simply say that the bill comes to the house with the solid support of nurses, doctors and paramedics. By lifting penalties and broadening the scope of the protection for clinical staff, the bill provides for the courts to sort through the facts and determine any legitimate offences case by case. The bill is necessary and the bill is being sought by medical professionals. The bill is fair and the bill is balanced.

Here is what has been said about the bill, which has been consulted extensively by me with stakeholders. On 15 October, Elizabeth Dabars from the Australian Nursing and Midwifery Association provided formal support for the bill. The Ambulance Employees Association has said:

Anything that decreases the risk of incidents and actual incidents is welcomed by us.

The South Australian Salaried Medical Officers Association indicated support for the initiative and also raised the issue of legal detention and the restraint of patients. The Australian Medical Association has welcomed the bill and provided constructive comment as to its content.

I am aware that the minister himself has identified the need for the bill. He and I both spoke to the nurses at a recent annual meeting and he acknowledged and put this in writing on 3 July that there was a problem and that there needed to be tougher penalties. He said this:

I will consult with the Attorney-General on whether this can be extended to the inpatient areas of our public hospitals, giving staff an additional protection of this more serious offence.

So the minister has said he will consult with the Attorney to fix this problem and introduce legislation of his own.

I have taken the initiative of bringing this in because that process seemed to be taking too long. I do it in a spirit of bipartisanship. I think this is too important an issue for us to squabble over in a partisan way. I think it is clear from the minister's utterances that both the government and the opposition want to see our nurses and doctors better protected. So I would ask the government, the backbench and all members present when this is discussed in caucus to please consider supporting my bill or, if there are issues with it, amend my bill.

Let's get it through this house and off to the other place; let's not quibble over it. The minister could choose to ignore my bill and introduce one of his own. Whatever the case, let's fix the problem, because we cannot allow a situation where nurses and other clinicians are belted up violently in our hospitals at the moment and the offenders go off without adequate punishment.

The time for this measure has come. It is supported by stakeholders in the industry. It is the right thing to do for nurses, for doctors and for our health system. It is the right thing to do for patients and users of our health system. It is the right thing to do for offenders, who must be sent a very clear message that violent acts against nurses are not on. I urge all members, independent, government and opposition, to support the measure forthwith. I seek leave to insert the explanation of clauses without my reading it.

Leave granted.

Explanation of clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 5AA—Aggravated offences

(1) This clause amends the Act to include an additional definition of an aggravated offence.

Under this clause, the victim must be a health practitioner in the course of their duties within the occupational settings of a hospital or health service. The offender's knowledge of the aggravating circumstances must be established.

This Bill amends the Act to extend protections currently afforded through regulations for emergency departments to the entirety of the hospital and for all health services.

(2) Currently ambulance orparamedic officers are not covered by the Health Practitioner Regulation National Law and therefore are specifically codified by this Bill.

(3) Health practitioner and health profession are defined under the Health Practitioner Regulation National Law to include a wide range of existing health professions.

The definition of health service is suitably broad to include all occupational environments where a health practitioner may be acting in the course of their duties, including non-traditional settings such as private rooms, locum home visits, volunteers at public events and so forth.

The definition of hospital includes both incorporated and private hospitals. It also provides for services provided to persons on a live-in basis.

Debate adjourned on motion of Mrs Geraghty.

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