INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
PSYCHIATRIC NURSES' ASSOCIATION
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Non-Implementation Of Recommendations Of Task Force Report On Compensation Scheme For Psychiatric Nurses Assaulted At Work.
2. In April 2002 it was agreed to establish a Task Force to investigate assaults on Psychiatric Nurses. The aim of the Task Force was to investigate a number of areas including the possibility of a compensation scheme for the Nurses concerned. In 2003, the Task Force recommended the establishment of a “no fault” non-statutory compensation scheme for Nurses working in mental health services who suffer serious injury as a result of an assault. Injury as defined by the Task Force would encompass any serious impairment of a person’s physical or mental condition. The proposals in the Task Force Report would also have retrospective effect, in that they would also have covered injuries, which occurred in the three years prior to the introduction of the scheme.
- In July 2005, the then Minister for Health and Children, Tánaiste Mary Harney advised the Unions that it had been decided not to proceed with the scheme as envisaged in the Task Force Report. The Tánaiste advised that the State Claims Agency would examine the possibility of introducing a fixed redress scheme. However any future proposal would provide for physical injury only and would not cover psychological injury resulting from an assault.
- The State Claims Agency reported back to the Department of Health and Children in December 2005. Further consultations involving the Department of Finance, the Attorney General’s Office and the State Claims Agency took place at the beginning of 2006.
- The matter of non-implementation of the recommendations in the Task Force Report was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 18 December, 2006 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 9th March, 2007.
2.The promise to deliver a compensation scheme was always inclusive of Psychological Trauma.
3.It is accepted case law that Psychological Injury is a recognised injury, for which damages are recoverable.
4.The Task Force Recommendations stated that the scheme should have retrospective effect, i.e. that it would apply to Nurses who were injured as a result of a serious assault in the three years prior to the date of the introduction of this scheme of compensation.
5.The Recommendations also envisaged that any scheme would also include Nurses who had instigated proceedings in a Court of law and who wish to have their claim processed in accordance with the provisions of this compensation scheme. This is not included in the Injury Compensation Scheme proposed by the State Claims Agency.
4. 1.In July 2005, the Government decided in light of advice received from the Attorney General, that is was neither feasible nor practical to proceed with the introduction of a “no fault” Compensation Scheme as recommended by the Task Force.
2.This was a decision of the Government and therefore Management of the HSE cannot make any embellishments on such a decision.
3.An insurance-based scheme is currently being set up and it should be in place within a matter of weeks.
4.Both the PNA and SIPTU were briefed on the general framework of the scheme as recommended by the State Claims Agency at a number of conciliation conferences
- The Court has considered the submissions made and the background to this case.
The Unions’ claim for a no fault compensation scheme for psychiatric nurses injured by assault has been the subject of discussion and negotiation and threatened industrial action in 2002.
The threat of industrial action was withdrawn on foot of a commitment from the Minister for Health and Children to establish a Task Force to investigate assaults, explore preventive measures to reduce the incidence of assaults and where assaults resulted in severe injury, to provide for a compensation scheme for the nurses concerned.
The Task Force reported in 2003 and recommended (inter alia)
2. “Injury” was defined as any serious impairment of a person’s physical or mental condition and,
3. The proposals would also have covered injuries which had occurred in the three years prior to the introduction of the scheme, allowed for claims which occurred in the three years prior to the introduction of the scheme and allowed also for claims where legal proceedings had been instigated, to be dealt with under the scheme instead.
- As part of its consideration, the Court has had regard to the nature of the medical condition inherent in the claim and the necessary differentiation which arises and has to be recognised as between the status of a “primary victim” and a secondary victim”. Such differentiation is determined in several civil cases such asKelly v. Hennessy 3 IR 253;  1 IRLM 321,Alcock v. Chief Constable of South Yorkshire Police  1 AC 310, White v. Chief Constable of South Yorkshire 2 AC 455 andMulally v. Bus Eireann ILRM 722. The Supreme Court has also dealt with a further aspect of differentiation i.e. “irrational fear” inFletcher v. The Commissioners of Public Works 14 ELR 17.
In the case being brought here by the Unions, the assaulted nurse becomes a “primary victim”. The Court has heard expert opinion at the hearing that the validity or otherwise of psychological trauma arising directly from such an assault, as opposed to the possible likelihood of “malingering”, is measurable by psychiatric professionals.
The Task Force report of 2003 specifically included “serious impairment of a person’s physical or mental condition” within the definition of “injury”. It also listed post-traumatic stress disorder as an accepted result of serious assault.
The then Minister for Health and Children, in a clarification issued to the PNA on 15th April 2002 had said, “the findings and recommendations of the Task Force will be accepted and progressed within an agreed time scale”.
The Government subsequently decided to reject the scheme proposed in the Task Force Report. This was done on advice from the Attorney General’s Office.
The Court requested a copy of this advice or a synopsis of it, but was advised by the HSE that this was confidential and could not be released. This has placed the Court at a considerable disadvantage when considering the case. The Court is of the view that the Unions have a legitimate expectation since 2002 of a resolution of their claims for a satisfactory compensation scheme.
The Court accordingly recommends that an insurance-based scheme be put in place to take effect from the date of this Recommendation, which should include an element of compensation for psychological trauma, where relevant, and where it arises directly from the effects of an assault on a nurse while at work.
The Court’s understanding is that there are approximately 40 such claims already lodged in the system. In the case of these claims and no other, the Court recommends that the terms of the proposed new scheme be extended to embrace those claimants on a once-off basis.
Signed on behalf of the Labour Court
29th March, 2007______________________
Enquiries concerning this Recommendation should be addressed to Lisa McCarthy, Court Secretary.