Injury from patient assault not from employer negligence: BC Court of Appeal

Psychiatrist sued for negligence, but made informed choice to interview patient alone

By Jeffrey R. Smith Aug 23, 2023

“There’s a spectrum of care in a therapeutic environment – if [staff] safety is paramount, then you probably have something resembling a maximum security prison; if therapy is paramount, you extend as much autonomy and mobility to your clientele as you can,” says Michael Penner, a labour and employment lawyer at Kent Employment Law in Victoria.

“A reasonable institution is going to be somewhere between those two ends of the spectrum, but it will need to have policies and procedures in place to ensure that balance is maintained as safely as possible.”

The British Columbia Court of Appeal assessed that balance in a psychiatrist’s negligence lawsuit after he was injured by a violent psychiatric patient, finding that the psychiatrist’s decision to interview the patient alone was the main contributor to his injuries, not any negligence by the employer.

Safety risk from patient

The worker was a psychiatrist at the Penticton Regional Hospital in Penticton, BC, which was operated by the Interior Health Authority (IHA).

On Nov. 24, 2014, the worker was the on-call psychiatrist at the hospital when a patient came to the emergency room acting confrontational and erratic. The worker assessed him as experiencing hypomania and elation. The hospital discharged him with prescribed medication.

Two days later, the worker saw the patient again in the emergency room at the request of the patient’s doctor and admitted him involuntarily under the BC Mental Health Act. The patient’s family advised the inpatient psychiatry unit (IPU) that the patient was a mixed martial arts fighter, so if he got angry he could hurt someone.

Over the next several days, the worker saw the patient multiple times in the IPU. The worker assessed the patient as having symptoms of psychosis or schizophrenia. On Nov. 29, the patient advised a nurse that he was feeling paranoid and was “losing touch with reality.” Security was called to help calm him and another psychiatrist gave approval to put him in a seclusion room if necessary.

An assessment noted incidents of violence in the past and the patient told a nurse that he hoped he wouldn’t have to hurt anyone to get out of the hospital.

On Dec. 1, the patient told a nurse that he was concerned that he might hurt someone. The patient seemed calmer over the next two days, but by Dec. 3 he refused to take his medications and got into an altercation with another patient. He started showing signs of hypomania and on Dec. 4 an occupational therapy student noted that he thought the patient posed a threat to staff.

On Dec. 5, the worker was asked to assess the patient in the IPU for a day pass after he seemed calmer. The worker went into a treatment room with the patient, where they sat down across from each other. According to the worker, he asked a nurse to accompany him, but all of the nurses on duty later said that he chose to conduct the interview unaccompanied, despite normal protocol for potentially dangerous patients. The worker also acknowledged that he felt patient privacy was important to the therapeutic relationship.

Workplace injury from patient

At one point, the patient leaned down and, without warning, punched the worker in the face. The worker reached for a panic button, but the patient hit him again and knocked him unconscious.

The worker suffered a broken jaw and a badly-injured right eye, with both requiring surgery. The incident led to the worker developing depression and post-traumatic stress disorder.

The worker sued IHA for negligence, alleging that IHA failed to address the risk of violence posed by dangerous patients. He said that IHA invited him to conduct a high-risk assessment of the patient and ought to have known that its facilities were inadequate, it failed to conduct a psychiatric intake and risk assessment, and it failed to take precautions such as providing personal alarms.

The trial judge noted that a violence risk assessment of the workplace is required under the BC Occupational Health and Safety Regulation and IHA had an aggressive behaviour assessment scale (ABAS). IHA failed to conduct a formal risk assessment or use the ABAS, but the trial judge found that this would not have changed anything because hospital staff, including the worker, were aware that the patient was a trained fighter with a history of violence. As a result, the entire care team knew that the patient presented a significant risk, said the judge.

The trial judge also found that the worker knowingly undertook the risk of a private, unaccompanied interview in order to effectively treat the patient. A formal risk assessment would not have provided new information that would have changed his decision, said the judge.

Standard of care vs therapeutic treatment

The judge also stated that he wasn’t prepared to set a standard of care preventing physicians from conducting unaccompanied interviews of high-risk patients, as that would make “psychiatric wards resemble prisons” without a therapeutic model of treatment. In addition, the worker didn’t provide any expert evidence indicating that a different standard of care would have prevented the assault, said the trial judge.

The lack of any expert evidence was a significant weakness in the worker’s argument, says Penner.

“What the court said was, ‘It’s all well and good for you to say they could have done this and they could have done that, but the test is, was what they had done reasonable,’” he says. “If you wish to present expert evidence to suggest that a reasonable standard of care had certain benchmarks that this hospital didn’t deliver, then that’s something I can look at, but you can’t raise the issue and not prove it.”

The worker appealed, arguing that the trial judge incorrectly assessed IHA’s medical standard of care for patients rather than determining whether IHA exercised reasonable care to protect staff in the hospital. He also said that the trial judge erred in presuming that expert evidence was required to set the standard of care in a workplace safety negligence claim.

The worker also argued that he should not have been put in a position to choose to interview the patient alone and IHA should have had a policy dictating proper procedure that didn’t leave workers to address their own safety.

Lack of risk assessment

The Court of Appeal agreed with the trial judge that the worker was aware of the “nature and extent of the risk of violence” posed by the patient and he was “the person most able to recognize the potential for violence.” The worker’s decision “was a matter of clinical judgment,” so IHA’s failure to conduct a risk assessment and the failure to use ABAS did not contribute to the worker’s injuries, said the appeal court.

The appeal court also agreed that the absence of expert evidence that a policy requiring chaperones at interviews of violent patients would have made a difference did not help the worker’s claim, particularly since the worker did not claim that such a policy would have affected his actions.

The Court of Appeal noted that the specific obligations and duty of care owed to the worker should be assessed on the facts of the case and the trial judge did not make any errors in his assessment. The trial judge was aware of statutory obligations relating to the violence risk assessment and policies such as ABAS, but IHA had to balance the safety of staff with patient privacy with respect to therapeutic care – the worker himself accepted this balance when he chose to interview the patient alone, the appeal court said.

“These two assessment tools [violence risk assessment and ABAS] did exist, but they would not have materially changed the circumstances if they had been performed because, ultimately, the [worker] knew that this guy was capable of skillful violence,” says Penner. “He was also aware that he had the standard protocol, which was to not attend by himself in a meeting with any patient, but he assumed that risk by electing to go in alone – the responsibility ended up being on him.”

The Court of Appeal found no error in the trial judge’s analysis of the negligence claim and dismissed the worker’s appeal.

Although this case was fact-specific, it’s a reminder that employers need to be clear on the obligations of the employer and employees when work being performed has an element of risk, says Penner.

“Have the risk clearly articulated and the obligations clearly set out at the outset as to who maintains the professional insurance to address misfortune, should it occur,” he says. “And if you have independent contractors and employees working in parallel, you have to be aware of the application of employee policies – are they being applied to the independent contractors the same way? If not, you need to articulate that and have a common understanding to avoid this type of litigation.”

See Sheoran v. Interior Health Authority, 2023 BCCA 318.

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