Sexual assault by patients: what is a nurse’s duty of care?

Once a patient assumes an in-patient status in a hospital, it thereby creates a duty of care concerning protection of the patient from foreseeable acts of harm.

Liability is not potentially limited to acts of harm committed by staff and/or subcontractors of the hospital, but can also arise in relation to other patients. A central determination of whether liability can be established in such circumstances is what harmful acts, by one patient towards another, are reasonably foreseeable by staff and/or health service management.

Given the cuts in healthcare funding and budgets, the reductions in staff numbers and training, and the pressures on bed vacancies, there are probably increasing opportunities for patient assaults. A recent case is illustrative.

The case involved a young female patient (plaintiff AB) who successfully sued a hospital in which she had been admitted. She asserted that she was the victim of a sexual assault by a male patient who had been placed in her ward.

The trial judge found that AB was admitted to the emergency medical unit at the relevant hospital suffering from salmonella poisoning. The EMU is a transitional ward between the emergency department and formal admission to a hospital ‘longer stay’ ward/bed. Its purpose is to allow the observation of a patient before deciding if the patient requires admission to a regular ward.

Sometime after she was admitted to the EMU, the other male patient (S) was also provided with a bed during the same night. Following his admission, S verbally abused all those around him and sexually assaulted AB.

At the time of his admission, S had been abusive and apparently affected by alcohol and/or drugs. S had also had a ‘significant’ history of attendances at the hospital.

AB alleged (and it was accepted by the judge) that the abuse and assault only took place because the defendant hospital (and its staff) breached its duty of care towards her. AB asserted that S should not have been placed in the same ward, and if there was no other option, he should have been supervised, and further, she should have been provided with the means to summon nursing staff if anything untoward occurred.

The hospital sought to rely on a section of the relevant Civil Law (Wrongs) Act dealing with resources (or lack thereof) and the potential ‘reduced’ responsibilities of public authorities (e.g. hospital/health services). The judge summarily dismissed this issue as the defendant hospital did not tender any evidence about its funding, its capacity to provide extra nursing staff, its capacity to provide emergency warning systems, or its ability to provide resources to prevent assaults by patients upon other patients. In addition, there was no evidence that S could not have been placed in a different ward or that there was a shortage of beds available, but there was evidence that the EMU was not full.

The judge stated that even if there had been evidence concerning resources, it is unlikely to have assisted the defendant. The warnings to the hospital and staff stemming from S’s “conduct upon and after his admission were such that he simply should not have been placed in the same ward as the plaintiff (as well as the other patients in the ward), absent the capacity to have close scrutiny of him or else an effective emergency response system”.

The evidence in relation to nursing supervision of the EMU was that two nurses primarily worked from the nurses’ station situated in the EMU. Two nurses were working during the shift and accordingly the judge expected that S would not have been in a position to roam the ward, interfering with other patients.

But the judge said, “[I]t is clear, however, that the nurses were not always at the desk; they took breaks, and the notes suggest that there were substantial intervals between observations of patients. This in itself is an indication of a lack of proper attention having regard to the ongoing conduct of [S].”

In relation to the patient call bell, the judge was not satisfied, based on the two nurses’ evidence, that it was ever brought to AB’s attention, or that it was in a position where it was easily accessible. One of the nurses gave evidence that “AB was mostly being under the covers”.

The judge responded by stating: “[T]his is consistent with fear on her part and also not being in a position where the buzzer [call bell] was readily to hand.”

The judge summarised, “[I]n my view, the duty owed by the hospital to the plaintiff [AB] was to ensure that she would be treated in a safe environment, free from foreseeable dangers. [S] was a very foreseeable danger because of his history, his conduct on presentation at the hospital, and his conduct after his admission and in particular in the ward. [S] should not have been in that ward and he should not have been so unsupervised that he was capable of freely molesting other patients.”

AB succeeded in her claim and damages were assessed at $267,660 against the hospital for her PTSD arising from the assault.

This case is a salutary lesson and reminder for front-line nurses and nurse managers that they both have to discharge this duty before and during a patient’s admission. This duty obviously can be fluid and dynamic depending on the relevant two patients and their respective (at times fluctuating) behaviours and relationship. Hence vigilance is required by nursing staff at all times.

Accordingly, front-line nurses need to be vigilant, report and on occasions be proactive in the clinical environment, and nurse managers need to understand such a duty and ensure that their staff do too, and that their policies and procedures are reflective of the same.

 

Dr Scott Trueman is a senior lecturer in the School of Health at the University of New England.

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