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Accident Compensation Cases

WorkSafe New Zealand v Idea Services Ltd (DC, 10/03/15)

OSH Tracker

Idea Services Ltd
Poor practice undetected 
A severely disabled teenager living in a respite care home drowned after being left unsupervised in a bath for a few minutes while his carer helped a colleague with another child – a practice that had evolved over time due to failures in training, documentation and procedures. 
Idea Services Ltd, a service arm of IHC, was convicted under s15 of the HSE Act, fined $63,500, and ordered to pay a total of $90,000 in emotional harm reparation to the victim’s mother, father and two brothers (Palmerston North DC, 10 March 2015). 
In January last year 15-year-old Nathan Booker was in weekend respite care at a home in Palmerston North. Two employees were rostered on a 24-hour sleepover to look after Nathan and five other high-needs children. 
Normally Nathan would have been given his medication after his bath, but on this occasion he was given it beforehand. It may have caused him to feel drowsy. About an hour later he was placed in the bath; a hoist was in place and a sling was under him. The door was closed to protect his privacy. About ten minutes later his carer left him alone for between five and 15 minutes in order to help the other worker with another child, who required calming before being placed in the home’s other bath. 
The carer, who believed the sling would hold him securely, checked on Nathan three times while she was helping the other person. On the fourth check she found him submerged. Ambulance staff restarted his heart but he died in hospital later that evening without regaining consciousness. 
Investigating, WorkSafe NZ found the risk of a child drowning had not been identified, nor had the risk of giving sedatives before bathing. Regarding Nathan specifically, his personal support documentation said that he required “full support” for bathing, including washing and drying. However “full” was not defined, and there was no specific reference to a bath. A different document, his care plan, said that he must be supervised at all times, but “supervision” was not defined. A third document, the alerts and crisis response form, said he was unable to get himself in or out of the bath and that he must not be left alone. 
A sign in the bathroom advised carers to follow the individual care plan of the person being bathed but did not spell out the dangers of leaving physically disabled people unsupervised in the bath. 
WorkSafe found support workers had different conceptions of whether Nathan was able to be left alone in the bath, and if so, for how long. There was no procedure for dealing with a situation where a supervising carer had to leave the bathroom. There was no explicit or precise instructions covering – for each person – bathing, medication, depth of water, use of sling or hoist, supervision. 
WorkSafe found training around bathing practices was informal and occurred on the job. Employees differed in their knowledge of medications and their sedative effects, and some had received no training in dealing with children with epilepsy. 
The organisation worked with a ratio of one adult to three children. Given the possibility of one employee being called away to assist the other, Judge J A Binns said there should have been only one bath on the premises; two baths should not have been able to be in use at the same time. 
Idea Services commissioned a psychologist to write a report after the incident. He identified that some staff were not familiar with specific care or procedural documents, and that in the absence of an on-site manager, staff would make day-to-day decisions as required. The manager was unaware when staff were feeling under pressure. 
Regarding the practice of leaving children unsupervised in the bath for short periods, the judge was scathing: “Idea Services had a responsibility to have known that this practice had evolved and it had a responsibility to have addressed it once staff became aware that it was a practice. In fact, it also had a responsibility to ensure that the practice never evolved.” 
The carer’s lack of training regarding Nathan’s medication may have influenced her decision to leave him alone in the bath, and revealed a serious failure by the organisation to train its staff. The organisation also needed to consider staff ratios, as if two staff were preoccupied in an emergency with one child, no one would be available to look after the other five. 
Rather than a generic sign, the bathroom should have had a list, changed daily, clearly identifying the specific bathing needs of each child. 
Sentencing, Judge Binns found the organisation’s culpability was high. “Nathan had high vulnerability and he was dependent on full-time care. This was a professional carer; this was their business.” 
Health and Community Services
Community Services
Penalty Amount:
Reparation Amount:
Appeared in Safeguard issue 151

Judgment Text

Judge J A Binns
Just before I start, I just want to acknowledge Nathan's family, and also the staff of Idea Services. I know this matter has been before the Court for a long period of time and obviously that has its own stressors for everybody. 
Much of what I have to say are legal matters. I make no apology for that. This is a Court and I need to refer to a number of matters which have been raised with me by counsel so I just want you to bear with me because I know that I have got a lot of things that I have to say to you all. 
Idea Services Limited is charged under the Health and Safety in Employment Act 1992 with an offence that it, being an employer failed to take all practical steps to ensure that no action or inaction of any employee while at work, harmed any other person, namely Nathan Barry Booker, who was approximately 15 and a half at the time. The maximum penalty for the offence is a fine not exceeding $250,000. 
I am not dealing with any charge in relation to the actions of an employee. My role is to sentence Idea Services on the charge laid under s 15 and s 51A of the Act. 
By way of background the defendant company is a service arm of IHC. It provides services throughout New Zealand to people with intellectual disabilities and also provides services to their families. The services they provide are individually tailored to the person to whom it is providing care. The stated purposes of Idea Services are on supporting people with intellectual disabilities to live, learn, work and enjoy life as part of the community. In this case Nathan received weekend respite care at a home at Woburn Place in Palmerston North. 
At the time, he was in the day-to-day care of his mother. 
Nathan had profound intellectual disability, cerebral palsy and spastic quadriplegia. He also suffered from Epilepsy and he was paralysed on the left side of his body. 
That clearly did not prevent him from making a huge contribution to his family and it is clear that he was much loved and will be sadly missed. 
At the relevant time of this offence, two employees were working for the defendant company as community support workers. On 10 January last year, both workers arrived at Woburn at about 2.30 pm for a rostered 24-hour sleepover. There were six children in care that night, all of whom had high needs. The victim Nathan Booker had personal support documents which noted that for bathing and personal hygiene he required “full” support and that he needed community support workers to wash and dry his body as he could not do this by himself. There was no specific reference to bathing Nathan. 
Nathan's care plan noted that he must be supervised at all times. His alerts and crisis response form noted that he was unable to get himself in and out of the bath and further noted, “Supervision required, cannot be left alone.” Risks were identified in Nathan's risk assessment and management protocols in relation to health issues such as having a seizure while in the bath. Nathan's support needs assessment recorded that he require “full” assistance with all his washing and drying needs. “Full”, was not defined. 
The defendant company had certain operational requirements and policies which include never leaving children unsupervised while in the bathroom area. It also had a specific bathing policy. Under the hazard of hot water, it was noted, that unless agreed and documented in a person's support plan, the following points must always be followed: That support workers should always be present when a person is bathing. It referred to not leaving the bathroom, for example to answer the telephone. I also noted that if staff had to leave the bathroom area, they needed to pull the plug out of the bath and support the person out. 
On the night in question, Nathan was given medication before his bath at about 7.30 pm which may have caused him to feel drowsy. He would normally have medication after his bath. 
At 8.30 pm Nathan was put into the bath. A hoist was in place with a sling under Nathan's body. The door was closed. I note that it was normal practice, it seems related primarily, to privacy but also because other children who were being cared for, did not always respect privacy. Nathan was later left alone for between five and 15 minutes. It seems, that was at approximately 8.45 pm. 
The support worker thought the sling would hold him securely while she left him in the bathroom. This was because both workers became involved with another child, getting that child inside, calming down, and bathing the child. The support worker said she checked on Nathan approximately three times during the time that he was left alone in the bath. 
At approximately 9.00 pm, the support worker went back to check on Nathan and found him submerged in the bath. CPR was started and an ambulance was called. Ambulance staff were able to restart Nathan's heart, but he did not regain consciousness and he died just before midnight later that evening. 
The prosecutor's investigation revealed a number of practical steps that should have been taken by the defendant, in light of the particular risks associated with caring for children with intellectual and physical disabilities. These were not identified in the respite care manual or the significant hazards manual. 
The first was to have identified the specific hazard of a child drowning. The risks of giving a person sedatives before a bath were not identified in the respite care manual nor identified in the significant hazards register. The specific risk of Nathan drowning was not referred to in his personal support documents, even though his physical disabilities put him at greater risk of drowning, if left alone in the bath. The personal support documents for Nathan were incomplete. Nathan's alerts and crisis response form referred to him being unable to get himself in and out of the bath. In contrast, his personal support information stated “full support” was required which, as I have said, was not defined or expanded upon. 
While there was a sign in the bathroom where Nathan was bathing, which referred to following the individual care plan as set out for the person being bathed, the dangers of leaving a child or young person unsupervised while bathing were not specifically identified. Because there were a number of children who stayed at Woburn with different capabilities, the defendant's documentation and the sign in the bathroom were not tailored to the individual needs of each child. 
Significantly, “full” support and “supervision” were not defined. This was important, as some children who stay at Woburn do not require full or direct supervision while bathing or showering. So, it is very important for the defendant company to have looked at the individual needs of each person for whom they were providing care. 
Following investigation, it was apparent that support workers had different understandings of whether and/or, for how long Nathan was able to be left alone in the bath. 
There should have been explicit and precise instructions covering bathing, medication, depth of water, use of sling or hoist, supervision, support, as well as a specific procedure to deal with situations where an employee had to leave the bathroom. 
The defendant company should also have ensured that staff understood and complied with its instructions and policies. Training in relation to bathing children appeared to occur “on the job”. Employees were not formally monitored after receiving initial instructions. Employees had differing levels of knowledge around the medications they were administering, including which, if any, of the medications had a sedative effect. At the time of the incident, the defendant company had not provided specific training to staff members relating to dealing with the needs of children who had Epilepsy. 
The defendant's significant hazards register, dated November 2006, referred to the hazard of hot water. The example given, referred to the situation of the phone ringing or someone coming to the door. The investigation revealed that other children's behaviour sometimes necessitated employees being called away from the bathroom. Employees did not know what the defendant's policy was regarding bathing a child with limited bathing ability, particularly where staff were called away from the bathroom. There was no training for staff around what to do in this situation. That was a significant concern for me, because that delegated the task of risk assessment to the particular staff member or staff members who were on duty at the time. 
The defendant company worked to a staff ratio of one staff member to three children. Therefore two baths should not have been in use at the same time. The defendant should have removed one of the baths. I note there was some discussion about whether or not there is a specific industry standard regarding bath beds, but certainly the use of bath beds was something that could or should have, been considered. 
In preparing for sentencing I have read and heard the victim impact statements from four victims. I know from what I have read that there are many victims here, but my focus is on Nathan's father, his mother and his two brothers. It is accepted that for the purposes of the law, they are defined as victims. 
Firstly, Gordon is Nathan's brother. He is married with a son, and he is living in Te Awamutu. Leighton is Mr Booker's brother. He lives in Huntly with his partner. There is Nathan's mother Angela Middlemiss and his father Christopher Booker. I know there are also other family members who are here today. 
I have also read restorative justice reports prepared by the Manawatu Justice Trust. The first occurred with Nathan's mother present and the second with both Nathan's parents present. 
I considered that the second conference should occur to provide Nathan's father with an opportunity to take part in the restorative justice process. Family were not present at the last hearing because I called the matter early when I realised that Mr Booker had not taken part in the first conference. I understand subsequently that family were already either here, or on their way here. I just want to apologise again to the family that, that happened. It was in the last stages of preparation that I realised that Nathan's father had not taken part. It was too significant a matter for me, to then proceed with the sentencing. 
The prosecution is under specific legislation, The Health and Safety in Employment Act 1992. The object of the Act is set out in full in s 5. 
It is to promote the prevention of harm to all persons at work and other persons in, or in the vicinity of a place of work by (and I am summarising the relevant portions from s 5): 
Promoting excellence in health and safety management 
Defining hazards and harm in a comprehensive way. 
Imposing various duties on persons who are responsible for, and who do the work with an obligation to: 
Set requirements that relate to taking all practical steps to ensure health and safety; and 
Are flexible to cover different circumstances. 
There are two provisions which record the importance of co-operation in the workplace for providing enforcement methods and prohibiting persons from being indemnified against the cost of fines or infringements. 
The sentencing criteria are set out in s 51A of the Act. 
Under s 51A(2) of the Act, I must apply the Sentencing Act 2002 and I must have particular regard to 
Sections 7 to 10 of the Sentencing Act. 
The requirements of s 35 and 40 relating to the financial capacity of the person to pay any fine or sentence of reparation. 
The degree of harm that has occurred; and 
The safety record of the defendant. 
This can include warnings and notices to the extent it shows any aggravating factors, either absent or present. 
Whether the defendant has 
Entered a guilty plea. 
Shown remorse for the offence and any harm caused by the offence. 
Co-operated with the authorities in relation to the investigation and prosecution. 
Taken remedial action to prevent circumstances of the kind that lead to the commission of the offence occurring in the future. 
Section 7 Sentencing Act deals with the purposes of sentencing. 
It is agreed by both counsel that the following purposes are relevant: 
Promotion of a sense of responsibility. 
The interests of the victims of the offence. 
Reparation, denunciation, deterrence and protection of the community. The latter in a general sense, because certain members of the community use the services of the defendant company. 
The sentencing purposes of rehabilitation and reintegration do not, per se, relate to the company, but those principles are consistent with those in the Act which relate to future prevention of circumstances which lead to the commission of the offence. I consider they are also relevant in assessing the level of remorse and the need for a deterrent sentence. 
The principles of sentencing that are agreed as relevant are: 
The gravity of the offending. 
The comparative seriousness of the type of offence. 
The need to impose the maximum penalty if the offending is within the most serious of cases. 
The need to impose a penalty near to the maximum if the offending is near to the most serious cases. 
Consistency with appropriate sentencing levels for similar offending. 
The effect of the offending on the victims. 
Any particular circumstances of the offending that would mean that an otherwise appropriate sentence would be disproportionately severe. 
I must also take into account any outcomes of the restorative justice processes that have occurred. 
It is accepted that the aggravating features under s 9 Sentencing Act are the extent of loss and harm resulting from the abuse of trust. 
The guideline judgment for sentencing in these cases is the Department of Labour v Hanham and Philp Contractors Limited & Ors1
| X |Footnote: 1
Department of Labour v Hanham and Philp Contractors Limited & Ors (2009) 9 NZELC 93,095; [2008] 6 NZELR 79 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
. In that decision the High Court adopted a sentencing approach, in three steps: 
To fix the amount of reparation taking into account any offer of amends and the financial capacity of the company. 
To fix the amount of the fine and in terms of R v Taueki2
| X |Footnote: 2
R v Taueki [2005] 3 NZLR 372Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
, to fix a start point based upon culpability followed by an upwards or downwards adjustment for aggravating and/or mitigating factors. 
To make an overall assessment of the proportionality and appropriateness of the total imposition of reparation and fine. 
On behalf of the defendant company, Mr Nathan emphasised that the defendant has pleaded guilty at the first opportunity and deeply regrets what occurred. The company fully acknowledges the profound effect on Nathan's family and is truly sorry and remorseful. 
IHC is the largest provider in New Zealand of services to people with intellectual disabilities. It is a not for profit organisation. Idea Services provides a wide range of services to over 750 group homes, over 350 vocational day services. It delivers support to approximately 7000 people. The fundamental value of Idea Services is that people with intellectual disabilities have the right to be treated with respect and dignity. The defendant company is principally funded through the Ministry of Health. 
On behalf of Idea Services, it is submitted that Idea Services has general policies in place which apply across all its recipients of care. 
In Nathan's case there was a needs assessment prepared by Support Link. The personal support information form is comprehensive and the information is provided under headings with the following questions. 
Under the heading “Bathing/Personal Hygiene” the response to the question, “What happened now?” is, “I require full support for this.” 
It is submitted that it could not be clearer that Nathan required full support with bathing as there were alerts that Nathan was unable to get in and out of the bath. It is submitted that it is inherent in all the policies of the defendant company that drowning was a risk/hazard for Nathan. 
Dr Webb, a registered psychologist, completed a report for the defendant company following Nathan's death. Dr Webb concluded that Nathan's Idea Services personal file — his needs assessment coordination, his support information and generic provisions of the family whanau respite manual, all accurately reflected Nathan's high level of dependency and vulnerability, including a need to be fully supervised at all times which would include his time in the bath. 
Dr Webb identified that some staff were not familiar with the specific documents. Dr Webb identified that there was no respite services manager on site and that staff would make day-to-day decisions as and when required. The Woburn manager was not aware of when events at Woburn were likely to become — or were becoming — pressured. Dr Webb's primary concern related to knowledge by staff on duty and primarily their ignorance of the respite centre manual. 
Since Nathan's death, the steps taken by Idea Services are set out in the defendant's submissions which were to address Dr Webb's specific recommendations. These were: 
Better orientation for new staff. 
Medication training. 
Ongoing programmes for existing staff. 
Competency assessment in relation to staff in sole charge. 
Ongoing monitoring and allocation of respite time. 
Review of rosters. 
In terms of the Hanham decision, I deal first with the issue of reparation. 
It is accepted that sentences of reparation and a fine serve distinct and discrete purposes and that the assessment of reparation must be made taking particular account of s 32 Sentencing Act. That provision deals with sentences of reparation and it provides: 
A Court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer 
Loss of or damage to property; or 
Emotional harm; or 
Loss or damage consequential on any emotional or physical harm or loss of, or damage to, property. 
Despite subs (1), a Court must not impose a sentence of reparation in respect of emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of victim in s 4. 
In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described, I must take into account whether there is or may be, under the provisions of any enactment or rule of law, a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage. 
Subsection (3) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired. 
I must not order the making of reparation in respect of any consequential loss or damage described in subs (1)(c) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001. 
When determining the amount of reparation to be made, I must take into account any offer, agreement, response, measure or action as described in s 10. 
I must not impose, as part of a sentence of reparation, an obligation on the offender to perform any form of work or service for the person who suffered harm. 
In this case it is accepted that the consequence of this offending and suffering by the victims, and other members of Nathan's family, will be long-lasting, in my view permanent, and significant. 
In relation to reparation, a sum of $11,896.67 has been paid to Ms Middlemiss in June last year in relation to costs of Nathan's funeral expenses. 
The defendant makes an offer of $80,000 less that sum which is approximately $68,000. 
In this case the focus is on the defendant company as an employer and it's failures as an employer. It is not on the actions of its employees. The staff on duty had eight years' experience. I am not sure whether that was each or collectively, but they were familiar with Nathan and his needs. 
It is accepted that Idea Services provides services to extremely vulnerable people with varying degrees of special needs. Certainly in my experience as a Family Court Judge and a family lawyer, the extent of “special needs” can vary from day to day. These people who are young, are entrusted to the care of Idea Services by their family. This requires an extremely high and professional level of care at all times. 
The defendant acknowledges that it is regrettable that a practice evolved which lead to service users — the young dependent people — being left in the bathroom unsupervised for short periods of time. Idea Services had a responsibility to have known that this practice had evolved and it had a responsibility to have addressed it once staff became aware that it was a practice. In fact, it also had a responsibility, to ensure that the practice never evolved. 
In my view, the words “full supervision” are also in conflict with the instruction to staff in relation to affording clients' privacy, or certainly, cause ambiguity. 
The submission by the defendant refers to a terrible accident. I accept that it was certainly terrible, but what happened was not an accident and in my view was entirely preventable. 
Counsel for the defendant refers to the issue of medication being a “red herring”. However, had the staff member received training in relation to medication that may have changed the decision to leave Nathan alone in the bathroom, or the timing of the decision to dispense medication so that it was not dispensed before Nathan was placed in the bath. The employee may have had a greater awareness of the need to follow policies and pull out the plug before leaving the bathroom, to ensure that there was no water in the bath. In my view it highlights a serious failure by the defendant company to properly train staff. 
The incident where two staff were called away and needed to deal with another young person in care, in my view, because of the special needs of the clientele, was such that the type of incident was foreseeable. There are a number of high needs clients in care at the same time. 
For me this raised an issue about appropriate staff ratios. For example, if two staff can be required at any one time to deal with an emergency situation for one client, that clearly means that at that particular time, there is a ratio of two staff to one and no staff to the other five clients. That necessitates a professional and an objective daily assessment of client's needs and a very clear emphasis on the identification of risks and training. 
The very nature of clients' high needs places a very high obligation on Idea Services to ensure that staff are fully and comprehensively briefed on a continuing and daily basis. That requires vigilant and ongoing management to assess who is being cared for at any particular time and the need to make an assessment of each individual person's needs. That needs to be assessed alongside all the other persons who are being cared for, because the defendant company has a responsibility and a duty to provide appropriate care to all their clients at the one time. 
In my view, it is not unreasonable and it would have been highly appropriate in my view, to have a specific list in a bathroom which is changed daily, which identified the specific bathing needs of each client. 
It also highlights the importance of having a clear system for the handover of staff so that staff are fully briefed, because there can be changing needs due to the particular circumstances of a given client, on any given day. For example if a young person is unwell or there are other external stressors in their lives. 
Section 32(1)B Sentencing Act allows for an order of reparation to be made to a victim who has suffered emotional harm through or by means of the offence. Apart from the informant suggesting a range of $60,000 to $125,000 and an offer by the defendant to pay an overall total sum of $80,000, there is really no guidance provided in the legislation or from the submissions, about the assessment of the quantum or apportionment as between the four victims, being Nathan's mother, father and two brothers. 
In preparation I have read all the decisions provided by counsel with their submissions — Department of Labour v Pike River Coal Limited3
| X |Footnote: 3
Department of Labour v Pike River Coal Limited (DC Greymouth, CRN 11018500202/202,211, 14, 15 March, 3 May 2013, Judge JA Farish) 
, Maritime New Zealand v Intercity Group New Zealand Limited4
| X |Footnote: 4
Maritime New Zealand v Intercity Group New Zealand Limited (DC Auckland, CRI-2011-004-22885, 7 May 2012, Judge Gittos) 
, Maritime New Zealand v Dolphinwatch & Nature Ecotours Limited5
| X |Footnote: 5
Maritime New Zealand v Dolphinwatch & Nature Ecotours Limited (DC Blenheim, CRI-2011-006-1115, 14 December 2011) 
, Department of Labour v Hanham and Philp Contractors Limited & Ors6
| X |Footnote: 6
Department of Labour v Hanham and Philp Contractors Limited & Ors (2009) 9 NZELC 93,095; [2008] 6 NZELR 79 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
, Department of Labour v Fletcher Concrete & Infrastructure Limited7
| X |Footnote: 7
Department of Labour v Fletcher Concrete & Infrastructure Limited (DC Nelson, CRI 2009-042-1043, 20 August 2009) 
, Department of Labour v Safe Air Limited8
| X |Footnote: 8
Department of Labour v Safe Air Limited [2012] NZHC 2677Has Litigation History which is not known to be negative[Blue]  
, the Ministry of Business Innovation and Employment v Taranaki Outdoor Pursuits and Educational Centre Trust9
| X |Footnote: 9
Ministry of Business Innovation and Employment v Taranaki Outdoor Pursuits and Educational Centre Trust (DC New Plymouth, CRI-2013-043-000271, 23 October 2013, Judge Lynch) 
, Department of Labour v Sir Edmund Hillary Outdoor Pursuits Centre of New Zealand10
| X |Footnote: 10
Department of Labour v Sir Edmund Hillary Outdoor Pursuits Centre of New Zealand (DC Auckland, CRI-2008-068-000565, 20 March 2009, Judge A E Kiernan) 
I want to refer to the victim impact statements, which have been very bravely read in Court by the victims themselves or other family and in the case of Nathan's father, by the prosecutor. 
Leighton, Nathan's brother is 18. He incurred some tangible costs; driving to Nathan's funeral and purchasing a suit. They are not specifically quantified. In terms of emotional harm he notes that he was really close to Nathan and that he had in the past provided care to Nathan; feeding and bathing him. Since Nathan's death he has a dull feeling. It has caused a big hole in his life as he has lost his best mate. He is still suffering the emotional effects, particularly on the anniversary of Nathan's death. Nathan was his little brother and so dependent upon him. The circumstances about hearing about Nathan's death were very traumatic to him. 

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