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University of Otago Law Theses and Dissertations |
Last Updated: 13 April 2024
The Uncivil Patient: how can the law be used to better protect healthcare professionals from client-on-worker abuse?
Ciaran O’Brien
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wananga o Otago.
October 2023
Acknowledgements
Without my family this piece would not exist. Their unwavering support has kept me going through the natural adversities faced. Particular thanks must go to Liam for our Catan and calls over the later stages which helped me to keep things in perspective and stay grounded – we built this city on wheat and ore, brother. Words cannot suffice, but I trust they know how big of a part they have played. Lots of love to you all.
Endless thanks must go to my academic guides, Dr Moshood Abdussalam and Dr Stephen Young. The advice and direction I received has been invaluable, both concerning the work itself and on the approach of how best to eat this elephant.
Sue from New Zealand Nurses Organisation, your willingness to engage with me and this project, providing valuable resources and revealing conversation, has been deeply appreciated.
Of course, I must express very special gratitude to my mates. In no particular order, Patrick, Henky, Hugo, Laura, Sam, Jess, Nick, Tahlia, Taine, Isaac, Taylor, Jack, Jack, Gill, Becky, Ben, Robbie, and many, many others I could not list without compromising the prime facie word count. You provided provisions – both legal and edible – along with sanctuary, counsel, laughs, and constant encouragement. Although this piece did not reach the initially desired fix I had hoped was out there, sometimes the real treasure is the friends we made along the way.
The Uncivil Patient: how can the law be used to better protect healthcare professionals from client-on-worker abuse?
The day-to-day expectations and responsibilities placed upon our healthcare services and workers are considerable.1 Life and death situations can oft become the backdrop, shifting from a rare occurrence, as it is for the majority of the population, to a daily potential scenario. Even when the stakes are lower, depending in part on location and past patient experience, there can exist an immense pressure upon healthcare providers to impart timely and accurate care.2 Now place upon that vocational burden a near one in four chance3 that at some point during their working week, any given New Zealand nurse will be forced to deal with some form of verbal abuse levied at them by a disgruntled patient or associated accompanist.
Imagine being a part of the 10%4 that have second thoughts about their next shift as a result of verbal aggression, or the slightly higher proportion who consider leaving their trained-for profession altogether.5
Despite their role in saving and improving lives, healthcare providers, particularly nurses, in New Zealand too often find themselves victims of verbal abuse from their patients and members of the public. If this turns, or threatens to turn, physical, the state and employer are empowered to provide remedies and sanctions, whether this be through improved security, trespass notices where possible, or through criminal charges, punishing perpetrators and providing a sense of legal relief. When this abuse is purely verbal however, a gap becomes apparent; what recourse for words spoken, however harmful, exists? No clear crime has been
1 “Healthcare Workers and Work Stress” (21 June 2023) Centers for Disease Control and Prevention
<https://www.cdc.gov/niosh/topics/healthcare/workstress.html>
2 Fatimah Lateef “Patient expectations and the paradigm shift of care in emergency medicine” (2011) 4(2) Journal of Emergencies, Trauma, and Shock 163 at 163
3 Dr Jinny Willis Employment Survey 2019 Research Advisory Paper Violence and Aggression against Nurses
(New Zealand Nurses Organisation, May 2020) at 8
4 Ibid., at 11
5 Ibid.
committed, yet the harms have potential to be debilitating, debasing, and even career- warping.
This dissertation seeks to explore existing legal frameworks in which there may lie some legal recourse, or other potential solutions based in New Zealand law, for this grey area of verbal abuse. My approach is, through literature, case, and statue review, as well as legal and critical analysis, to investigate the three most plausible approaches currently in New Zealand. These are the civil sphere of tort law, the criminal sphere of statue, and the obligations upon employers per the Health and Safety at Work Act 2015. Tort law struggles to provide redress, in part, due to the high thresholds of usually tangible harm it seeks to compensate for. The criminal sphere often fails due to the lack of criminality in the actions of perpetrators of verbal aggression, the undesirability of criminalising words spoken, and the lack of political will to potentially contradict this. The Health and Safety at Work Act 2015, while designed to make workplaces psycho-socially safe, does not place sufficient obligations upon employers to prevent the type of harm targeted, beyond doing what is “reasonably practicable”6, which is often curtailed due to insufficient funding and staffing.
Aspects of the New Zealand position will be compared and contrasted with safeguards and policies of our Australian neighbours for insights into how a comparable common law legal system and healthcare system currently addresses this issue. The specific concerns of nurses in New Zealand pertaining to underreporting and maladaptive safety practices will be considered, as well as aspects of the multifaceted causes of abuse of healthcare workers (though not to the depth of a full sociological investigation).
6 Health and Safety at Work Act 2015, s 36
This dissertation will not consider recourse surrounding the actions of those with compromised agency; if one is demented, psychotic, or intoxicated even, then their behaviour falls outside the purview of this research. It is an issue for future research, but this work is targeting the actions of those who are sound of mind, and actions made knowingly makes simpler the application of legal tests. I accept this caveat given the nature of the targeted conduct; it requires a mens rea element to be intentional and therefore theoretically actionable.
This piece will seek to find potential avenues of viable redress for the conduct targeted through existing legal mechanisms and spheres. The landscape of the current social issue of verbal abuse in healthcare settings will be establish in Chapter I, with a statistical exploration of the state of affairs in New Zealand and Australia conducted. Contributing factors to this unfortunate phenomenon will be considered, as well as concerns surrounding underreporting and the unique relationships healthcare providers have with their clients, in part, due to the extra obligations layered upon them, differentiating the relevant interactions from other day- to-day conflicts. A bleak picture is painted, but it is necessary to do so in order to frame the legal analysis that follows.
Tort law and the civil sphere will be the first area considered as having potential solutions toward legal relief. The functions and viability of specific torts, especially Intention to Inflict Emotional Distress (IIED), will be examined, with the history, development, and elements of IIED explored and then applied to potential scenarios of targeted conduct. The potential for judicial innovation and expansion of this tort in light of the United Kingdom ruling of OPO v Rhodes and the dissent within will be addressed. Ultimately, without such innovation, the tort sphere in the current New Zealand context is maladaptive in providing solutions.
Next, the criminal sphere will be addressed, with its functions stated and possible existing statutes applied to relevant scenarios. NZBORA and freedom of expression concerns will be explored before an investigation of an intriguing provision, section 112 of the Telecommunications Act 2001, takes place – a provision, it is argued, oversteps in its limitation of freedom of expression, but given its existence, the question is asked of whether similar legislation could be produced to target verbal aggression against healthcare providers. The likelihood of such expansion however is considered unlikely due to the NZBORA limitation issues and recent examples, in New Zealand and abroad, of freedom of expression and speech being of deep concern to legislators.
The realm of employment law will be the last major area of potential action to be examined. The legal obligations upon employers to provide a psychosocially safe working environment will be mapped, before current measures to ensure health and safety are explored, alongside potential measures/improvements being considered, and other employment law actions applicable examined. Throughout, the likelihood of success for an action taken by the regulator will be appraised, with the chapter ultimately concluding that due to the inaction of the regulator in the face of a reasonable practicability standard, success is unlikely. This should not be the only avenue of attempt to push for improved workplaces however, with other viable means of pressure applicable.
A brief discussion on the issue of corroboration of evidence for any of these possible actions toward recourse is then had, looking once more to improvements pertaining to workplace safety as one means of increasing the likelihood of its collection.
While this dissertation fails to find presently viable solutions or avenues of achieving legal relief for individuals subjected to the conduct targeted, it acts successfully as an expository
piece, bringing to the forefront the inability of New Zealand’s current legal frameworks to act effectively in this area of complex social concern.
I. Verbal Abuse of Healthcare Providers in New Zealand, Complexities, and Underreporting
It is important to establish a working definition of, and set parameters for, what amounts to verbal abuse for the purposes of this dissertation. The type of language to be targeted takes its wording from New Zealand statute, namely Section 112 of the Telecommunications Act 2001, for reasons that will be further explained in Chapter III of this piece; “...profane,
indecent, or obscene language... with the intention of offending the recipient”.7 This is the threshold of conduct that constitutes verbal abuse for the purposes of this dissertation.
The New Zealand Nurses Organisation (NZNO) represents approximately 67% of the New Zealand nursing workforce;8 a considerable proportion of healthcare providers. This places the NZNO in a unique position to gather data from their members pertaining to industry-wide issues and concerns. Their recent 2019 Employment Survey included a sub-study that provided the 2020 Research Advisory Paper on the topic of Violence and Aggression Against Nurses. Given their reach, methodology, and high statistical confidence level/low margin of error, NZNO paints a reliable picture for many healthcare providers. Unfortunately, the picture is grim.
Firstly, we consider the frequency of exposure to verbal abuse by either the patient or accompanying person. Nurses were asked about the regularity with which they received verbal abuse or threats in terms of daily, weekly, monthly, or a few times a year. The results found 6.8% of those nurses surveyed experienced daily instances of abuse from the patient,
7 Telecommunications Act 2001, s112
8 Dr Jinny Willis, supra note 3, at 3
alongside 3.1% reporting daily instances from an accompanying person.9 When expanding the timeframe to weekly instances, an extra 15.9% of nurses reported instances of patient on worker verbal abuse, and 9.8% from an accompanying person.10 When read together, this indicates that 1 in 4 nurses experience a weekly occurrence of verbal abuse perpetrated by either a patient or an accompanying person.Looking to the impact upon and response from nurses to these instances is also concerning. For verbal abuse, over half of nurses were upset (50.8%), near 30% (29.6%) were angered, and 12.4% considered leaving their job as a result.11
These statistics are alarming; in an industry struggling for staff,12 too many are considering moving away from their profession due to harmful words levied against them during the course of their average working day. The accommodation of, and often non-reporting of, incidents of verbal abuse will be considered in Chapter 1.3.
In New South Wales, Australia, a similar report to that of NZNO’s took place in 2019, researching and categorising violence and aggression in the nursing and midwifery sector.13 Various types of verbal aggression were differentiated, while the timeline was set as incidents in the past six months from the time surveyed. All members recorded episodes of violence, with the majority (81%) reporting 1 to 20 incidents.14 Of these incidents, verbal/non-physical violence was most common with 76% of participants reporting at least on instance in the past
9 Dr Jinny Willis, supra note 3, at 8
10 Ibid.
11 Dr Jinny Willis, supra note 3, at 11
12 Sophie Trigger “Nurses plead for more staff as violence and abuse surge in hospitals” (24 April 2023) NZ Herald <https://www.nzherald.co.nz/nz/politics/the-frustration-is-just-boiling-over-longer-wait-times-blamed- for-increased-abuse-in-health-settings/W7KVKNUVAFD4RAO5ISOXRY26N4/>
13 Dr Jacqui Pich Violence in Nursing and Midwifery in NSW: Study Report (NSW Nurses and Midwives’ Association, University of Technology Sydney, August 2019)
14 Dr Jacqui Pich, supra note 13, at 37
six months.15 As with the responses to the NZNO survey, a concerning number of participants considered leaving their profession altogether (41%) as a result of violence (both physical and verbal).16 The emotional responses reflected a spectrum of negative emotion, ranging from unhappiness, powerlessness, anger, fear of future episodes (all above 50%),17 to extremes of self-reported Post Traumatic Stress Disorder (8%).18These Australian statistics mirror the concerns reflected by those of New Zealand, and indicate that violence, commonly verbal, is an issue for healthcare providers across jurisdictions, and is not unique to New Zealand. The responses to quell such incidents may need to be unique however and will be considered throughout this piece.
It is worth looking into some of the multifaceted causes and contributing factors of verbal abuse in order to better conceptualise the issue as a whole, and then look to potential solutions in law, and address whether they are appropriate or maladaptive.
An accepted predictor of violent or aggressive behaviour is past violent behaviour.19 Past experiences with healthcare providers also colours one’s attitude towards future interactions,20 which may predispose individuals negatively toward providers. There exists a policy mechanism for identifying patients with a history of violence and aggression in past healthcare settings, allowing for identifying and treating accordingly, which will be further explored in Chapter 4.
15 Ibid.
16 Dr Jacqui Pich, supra note 13, at 52
17 Dr Jacqui Pich, supra note 13, at 50
18 Ibid.
19 Dr Jacqui Pich, supra note 13, at 16
20 John Joby “Patient Satisfaction: The Impact of Past Experience” (1992) 12(3) Journal of Health Care Marketing 56 at 56
There exists a mismatch in perspectives on what causes violence and aggression, as evidenced by the review article of Fletcher, Crowe, Manuel and Foulds.21This review analysed psychiatric inpatients and healthcare providers specifically but may be extrapolated. Through a mixture of boredom, lack of privacy, and lack of autonomy, patients across many studies (collated by this research) reached a common theme of perceived disrespect from healthcare providers towards patients pre-empting an episode of aggression.22 Comparatively, staff believed the primary causes came out of lack of staffing, resourcing, policy, and personality.23 Both groups also identified poor interpersonal skills as a key factor.24 This indicates that working toward more informed communication skills, ensuring a patient feels respected throughout the process of treatment, may be one necessary avenue towards minimising conflicts. Adding to this; “it is recognized that risk of interpersonal violence cannot be eradicated, but it can be mitigated and managed.”25
Continuing on the theme of communication, and in turn, respect between parties, being vital toward minimising episodes are the differing dynamics of the relationships between doctor and patient, nurses and patient, and support staff and patient.
Past doctor-patient relationship models of ‘Active-Passive’ (where the patient is seen as inanimate and the doctor is the only one active in treatment), ‘Guidance-Cooperation’ (where the doctor, with their superior knowledge, is expected to be trusted and their guidance followed), whilst appropriate in some cases, have seen a shift towards a ‘Mutual
21 Alice Fletcher, Marie Crowe, Jenni Manuel, James Foulds “Comparison of patients’ and staff’s perspectives on the causes of violence and aggression in psychiatric inpatient settings: An integrative review” (2021) 28 Journal of Psychiatric and Mental Health Nursing 924
22 Ibid., at 928
23 Ibid.
24 Fletcher, Crowe, Manuel, Foulds, supra note 21, at 935
25 Ibid., at 925
Participation’ model.26 This model emphasises an equal partnership between doctor and patient; the patient is an expert in their own life experience and goals, whilst the doctor looks to help achieve these goals. This is positive on its face as it allows participation and input from the patient, making them feel heard and respected. Continuation of the trend toward this model may be dispelling instances of violence and aggression against doctors when properly exercised, yet nurses remain at risk; “Among healthcare professionals, nurses are at the greatest risk of experiencing violence, both physical and verbal.”27
The dynamic between nurses and patients is key to patient experience.28 The formation and complexities of this relationship are explored by Halldorsfottir,29 positing that alongside the prerequisites of nurses being perceived as professionally wise, competent, and genuinely caring, there is a “spiritual connection” required in order to, in their metaphor, build a bridge between patient and nurse, or put up a wall in its absence; “The bridge is developed through mutual trust and the development of a nurse–patient relationship. On the other hand, perceived uncaring creates distrust, disconnection, and the above-mentioned ‘wall’ of negative or no communication.”30 For instances of violence and aggression against nurses, it follows that when the bridge is present, these are far less likely to occur versus when the wall is instead in place. The creation and cultivation of a positive nurse-patient relationship is further broken down into six interwoven steps. At the core of each is communication and perceived genuine care from the nurse towards the patient.31 Building such a relationship takes time and resources (which are often lacking), and specific interpersonal skills (which
26 Fallon Chipidza, Rachel Wallwork, Theodore Stern “Impact of the Doctor-Patient Relationship” (2015) 17(5) The Primary Care Companion for CNS Disorders
27 Fletcher, Crowe, Manuel, Foulds, supra note 21, at 925
28 Sigridur Halldorsdottir “The dynamics of the nurse–patient relationship: introduction of a synthesized theory from the patient’s perspective” (2008) 22(4) Scandinavian Journal of Caring Sciences 643 at 648
29 Ibid.
30 Ibid., at 646
31 Ibid., at 650
are often ‘devalued’ in nursing).32 Nurses must be afforded the time, resources, and interpersonal skills training in order to have a better chance of building a bridge between themselves and their patient, and lessen the chances of a problematic wall being erected.Nurses bear the brunt of violence and aggression in healthcare provider settings, in part due to their unique relationship with the patient that has the potential to go sour if not properly prepared for or approached. They exist as the first port of call and are beholden to the patient (as discussed more in Chapter 1.4). The key themes remain perceived respect, communication, and caring between the parties within the interpersonal relationship; if these are able to be established, episodes of violence and aggression are far less likely to occur.
The current data regarding instances of abuse, both physical and verbal, is known to not be entirely reflective of the true, and increasing, frequencies.33 This is due to the concerning phenomenon of underreporting present in healthcare settings. It is where an incident goes unreported, despite being of a violent or aggressive nature.
Ideally, all instances of violence and aggression would be reported, allowing for more complete data and a betting understanding of the breadth of the issue. However, many healthcare providers, across jurisdictions, take a selective approach when deciding whether or not to report. In the Australian Study Report, it was found that 45% of respondents reported some episodes and 22% reported none whatsoever despite occurrence.34 In the NZNO study, it was found that in cases of verbal abuse specifically, only 18.5% of respondents filed a
32 Ibid., at 644
33 Dr Jacqui Pich, supra note 13, at 33
34 Dr Jacqui Pich, supra note 13, at 56
formal report.35 These percentages indicate considerable underreporting in the healthcare sector of abusive episodes.1.2.3 Causes
Some reasons for such high instances of underreporting are similar across Australia and New Zealand, and reflect maladaptive procedures, unhealthy workplace cultures toward abuse, and worker beliefs (often supported by past experiences) that nothing would come of a report, and nothing would fundamentally change.
The leading reason for non-reporting in New Zealand was a patient lacking agency (i.e. “The patient did not know what he/she was doing” (45.7%), “The patient was confused/demented” (54.3%)).36 Whilst this impacts the data accuracy, it also reflects an attitude that where the nurse/healthcare provider does not attribute blame upon the patient, they are less likely to file an official incident report. These instances fall outside the purview of this work, as previously established.
In New Zealand, nearly a third (33.1%) failed to report as they considered receiving abuse as “part of the job”,37 while in New South Wales, this was slightly more prevalent at 41%.38 This culture of accepting violence and abuse is concerning – in any other workplace it would be unacceptable,39 yet is normalised in healthcare to the detriment of its workers.40
Furthermore, in New Zealand, 20.1% relayed that the procedure of reporting was too time intensive, 25.5% lacked the time to report, and 22.3% believed that nothing would happen as
35 Dr Jinny Willis, supra note 3, at 11
36 Ibid., at 12
37 Ibid., at 12
38 Dr Jacqui Pich, supra note 13, at 57
39 Australian Nursing and Midwifery Federation Prevention of occupational violence and aggression in the workplace (November 2018)
40 Suzanne Rolls, Lynley Mulrine, Marg Bigsby, John Miller, John Howell, Sue Gasquoine Position Statement – Violence and Aggression Towards Nurses (New Zealand Nurses Organisation, December 2019) at 2
a result if reported.41 The comparable survey questions in the Australian context revealed similar issues, with an over complicated reporting process accounting for 22% of non- reporting, 38% lacking time, and 56% perceiving that there would be no long-term change as a result.42Healthcare providers, particularly nurses, are uniquely exposed to “disproportionate harm”43 in part due to the time-costly reporting process, lack of time generally, a counterproductive attitude of sweeping episodes under the rug as they are to be expected and accepted, and because, from their experiences, nothing fundamentally changes when reports are filed. In order to get a full picture from the data, the notion that abuse is an acceptable part of the job must be combatted, reporting must be made simpler with time afforded for it, and change must be visible as a result.
Unlike general service providers, when dealing with members of the public, doctors and healthcare providers have extra ethical and legal obligations layered upon their relationship, creating a unique interaction that opens them up to more potential abuse than the average vendor, and restrains them from using measures to protect or remove themselves that would otherwise be available.
While the traditional Hippocratic oath (the oath taken by physicians when entering the profession) has changed44 to suit modern times, basic ethical principles are still pledged to,
41 Dr Jinny Willis, supra note 3, at 12
42 Dr Jacqui Pich, supra note 13, at 57
43 Suzanne Rolls New Zealand Nurses Organisation Submissions on the Protection for First Responders and Prison Officers Bill (2020) at 1
44 Radio New Zealand “NZ doctor's Hippocratic Oath change passed” (15 October 2017) Radio New Zealand
<https://www.rnz.co.nz/news/world/341592/nz-doctor-s-hippocratic-oath-change-passed>
often in a form generated in part by the relevant Faculty and graduating medical students themselves - soon to be doctors - in New Zealand.45 Although each of these declarations may differ, often being reformulated, a survey of member organisations of the World Medical Association revealed a number of consistent principles seen within declarations.46 These included Confidentiality, Honouring colleagues and the profession, Respect for human life, Appropriate standard of personal behaviour, Rejection of discrimination, and Dignity of the patient. While nurses do not take these same pledges, they more often make declarations upon entering their profession that cover a comparable array of responsibilities to their patient. These ethical pledges ensure appropriate treatment, but also tie the healthcare provider to the patient – ethically they must treat a patient despite any potential pressures or harm levied against them by said patient.There is a legal duty of care imposed upon healthcare providers also. Once a patient-provider relationship is established, the provider may not, by act or omission, do anything that may cause harm to the patient,47 to the legal standard of tort negligence. This would include refusing to provide care once legally bound to the patient in an act of accepting to treat. This means that, unlike in other service relationships, there is an obligation to continue the relationship once established regardless of any violent or aggressive behaviour displayed by the patient.
45 Paul McNeil, S Bruce Dowton “Declarations made by graduating medical students in Australia and New Zealand” (2002) 176(3) The Medical Journal of Australia 123 at 123
46 Zoe Rheinsberg, Ramin Parsa-Parsi, Otmar Kloiber, Urban Wiesing “Medical oath: use and relevance of the Declaration of Geneva. A survey of member organizations of the World Medical Association (WMA)” (2017) 21 Medicine, Health Care and Philosophy 189 at 192
47 Jill Clendon, Anne Brown, New Zealand Nurses Organisation NZNO Policy, Regulation & Legal Fact sheet: Understanding Duty of Care (New Zealand Nurses Organisation, 2016) at 1
In New Zealand, it is possible to trespass individuals from hospitals (where the majority of healthcare providers operate) per Te Whatu Ora policy.48 However, this trespass does not extend past where that individual requires emergency treatment.49 They may not accompany a patient, yet if they need to become a patient themselves, the trespass is no longer applicable, meaning healthcare providers are exposed to potentially previously violent and aggressive individuals. This, on balance, is appropriate, as if one is in need of urgent treatment, they ought not be denied, yet this undermines the viability of trespass to deter problematic potential patients and protect healthcare providers from future violence. Trespass serves to keep out individuals as visitors or accompanists but does not insulate healthcare providers entirely – as per their obligations, they must treat those in urgent need.
As established, healthcare providers often operate in a unique setting where trespass is conditional and there exist obligations to maintain the relationship in the face of violence. These obligations and restrictions upon controlling measures do not exist for other general service providers; they are free to trespass and/or end relationships with members of the public at will. This allows vendors to protect themselves and their workers from problematic or potentially violent patrons in a way unavailable to the majority of healthcare providers.
The violence faced by healthcare providers is unique, in part, due to their obligations to patients and inability to deny their services in urgent conditions, despite previous conduct by the patient. The relationship takes place under an umbrella of legal and ethical obligations that uniquely bind the provider to the patient, whilst healthcare providers also lack the
48 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Trespass Policy No: 5.5.3” (February 2022)
<https://www.bopdhb.health.nz/media/n5uhvvpn/trespass5-5-3.pdf>
49 Ibid.
conventional means of exclusion and protection afforded to general service providers (in urgent medical situations).This chapter has outlined the unique relationship between healthcare providers and their patients, how violence and aggression occur within this, its prevalence, issues of underreporting, and the legal/ethical obligations upon healthcare providers compared to other industries. This has been done to better provide insights into the harms faced, and the environment in which they are faced and provide a backdrop upon which the potential legal avenues of recourse may be examined.
II. The Civil Sphere: Tortious Solutions?
Given the breadth and prevalence of verbal aggression and abuse, and the devastating impacts it can have upon healthcare providers, it is natural to desire a remedy. Whether such a remedy exists already will therefore be investigated from various legal angles. This chapter seeks to explore potential avenues of legal recourse housed within the civil law sphere. The relevance and applicability of tort actions as a means of deterrence from violent and aggressive patient behaviour is considered through appraising tort law functions and damages, as well as considering the elements of specific torts and whether they would be met in the type of verbal violence episode commonly experienced in healthcare settings. Intentional Infliction of Emotional Distress (IIED) is explored in depth as the most applicable tort, considering its development, usage, and formulation in New Zealand. Ultimately, due to the high elemental thresholds, tort law fails to provide the recourse sought.
The nature of the targeted instances of aggressive verbal behaviour, occurring between private citizens with a wrong between them taking place, makes tort law a logical place to begin an investigation into potential recourse. There are potentially extra legal and ethical layers upon the interaction, as established in Chapter I, but at its core, the relationship is of a nature suited to the tort sphere; there exists no criminal legislation prohibiting the potentially harmful behaviour (though this will be deeper explored in Chapter III), yet a private wrong has occurred. The unique flavour of the wrongful act and harm requires an analysis of tort law functions to assess suitability beyond a prime facie level, revealing that, although narrow, there may exist scope to apply tort actions to these scenarios.
Compensation is often cited as a key function of tort law50 - in cases of private wrongdoing it is necessary and proper for the victim to be, as best as is possible, restored to their position prior to the actionable incident. This compensatory function is alive and well in all manner of tort spheres in other jurisdictions, but in New Zealand, with regard for tortious actions relating to “personal injury”51 by “accident”52 this compensatory function has been curtailed. The unique Accident Compensation Scheme (ACC) system present in New Zealand looks to provide compensation to victims of personal injury via a redistributive socially funded scheme, removing the need for, and ability to pursue, litigation in the majority of incidents.53 Given the purpose of this dissertation (i.e. the targeting of verbal aggression and looking for avenues of justice/recourse) it is necessary to identify whether tort law, and its altered functions in the New Zealand setting, in part due to ACC, can provide such appropriate remedies.
If the targeted conduct constitutes a “personal injury” by “accident” then theoretically the damages ought to be compensated for by ACC. However, this relies upon said conduct adequately activating the statutory provisions and coming within scope of the scheme, which prime facie, that conduct does not. This is, in part, due to how the high, complex, and arguably maladaptive bars in place for claims of “work-related mental injury”54 operate
50 Basil Markesinis “tort” (22 August 2023) Encyclopedia Britannica <https://www.britannica.com/topic/tort>
51 Accident Compensation Act 2001, s 26
52 Ibid., s 25
53 “New Zealand Legal Environment - A summary of the major differences between the New Zealand legal system and other legal systems” (2023) Wilson Harle <https://wilsonharle.com/legal-information/nz-legal- guides/new-zealand-legal-environment>
54 Accident Compensation Act, s 21B
within the scheme, making all but the most novel claims unsuccessful.55 A clinically significant cognitive behavioural impairment is required,56 caused by a single event,57 directly experienced,58 that could be expected to cause a mental injury to people generally,59 which would be contentious in the case of verbal aggression. There is explicitly no cover for a “gradual process”60 leading to mental injury, meaning the common occurrence of a series of aggressive episodes resulting in injury would not be covered.61 The incredibly narrow range of circumstances required is jarring and inconsistent when considered against the supposed governmental focus upon mental health – logically such accumulative mental injuries which are undisputedly work-related ought to receive cover, yet do not.Where ACC does not provide compensation, it is possible to sue for personal injury, utilising tort law in the compensatory fashion often precluded in New Zealand.62 However, it is appropriate to consider the accompanying functions of tort law and, in particular, exemplary damages in the context of verbal aggression causing harm to a prospective plaintiff. ACC legislation should theoretically block actions claiming for personal injuries via tort for compensation, and were it to, unexpectedly, in this context do so (i.e., were compensation available in a specific instance) then other damages would need to be sought via the tort action.
55 See KB v ACC [2013] NZACC 41 for delayed onset/accumulative experience PTSD not qualifying for cover (onset must be immediate), OSC v ACC [2013] NZACC 117 for bullying/minor physical assault/racial harassment not qualifying for cover, MHF v ACC [2020] NZACC 18 for witnessing distressing patient deaths not qualifying for cover, and MC v ACC [2020] NZACC 32 for a successful claim where a tour of war was deemed a ‘single event’
56 Accident Compensation Act 2001, s 27
57 Ibid., s 21B(1)(a)
58 Ibid., s 21B(2)(a)
59 Ibid., s 21B(2)(b)
60 Ibid., s 21B(7)(c)
61 See KB v ACC [2013] NZACC 41 for delayed onset/accumulative experience PTSD not qualifying for cover (onset must be immediate)
62 Supra, note 53
There are functions identified beyond compensation for the realm of tort law, including appeasement, justice, and deterrence,63 and there exists a pressure on the judiciary in New Zealand to further the case law surrounding such functions as a result of the ACC scheme.64 These further functions can often be seen exercised through exemplary damages in the context of suing for damages caused by personal injury (given the usual compensatory barring of ACC). It appears likely that compensatory damages would be pursuable for this dissertation’s targeted conduct, but exemplary damages may be a viable option from which to seek compensation if precluded.Exemplary damages, or punitive damages, often look to punish a wrongdoer for “outrageousness of the defendant’s conduct”.65 What constitutes “outrageous” is at the discretion of a given judge (with judicial precedential guidance), so theoretically could be pursued. Considering the prevalence and commonness of verbal aggression however, deeming such conduct as “outrageous” may be problematic due to a “flood gates” argument,66 making all but the most intense and appalling outbursts non-applicable. It seems unlikely that such an act of verbal aggression could be outrageous yet contain no assault (or threat of imminent bodily interference, constituting assault), making the conduct shift into the criminal sphere.
Given the reasoning above, it appears compensatory damages are the most likely award to be pursued in this context as ACC would likely not bar such awards due to the way in which mental injury claims and coverage are assessed. The next step is to identify appropriate torts
63 David B Collins “Proceedings for Punitive Damages in the Regime of Accident Compensation” (1978) 158 NZLJ 158
64 Simon Connell “JUSTICE FOR VICTIMS OF INJURY: THE INFLUENCE OF NEW ZEALAND’S ACCIDENT COMPENSATION SCHEME ON THE CIVIL AND CRIMINAL LAW” (2012) 25(2) NZULR 181 at 206
65 Couch v Attorney-General (No 2) (on appeal from Hobson v Attorney-General) [2010] NZSC 27; [2010] 3 NZLR 149 at [19] 66 This refers to the principle that setting a particular precedent may open the ‘floodgates’ to an overwhelming amount of litigation, see “Floodgates Principle” (13 June 2023) UOLLB First Class Law Notes < https://uollb.com/blog/law/what-is-floodgates-principle>
that may capture the targeted conduct, review their elements, and ascertain the likelihood of success.
Harassment was initially considered as a possible tort with potential to capture the scope of verbal aggression episodes but failed to do so upon inspection. Harassment’s scope and elements, which have been enshrined statutorily, require unwanted or threatening patterned behaviour that makes one fear for their safety.67 However, the further requirement of at least two separate instances of such patterned behaviour against an individual within a year would be unlikely to be met; one-off actions are not covered, and it is unclear whether specific tort recourse would be appropriate – use of the criminal standards via the Harassment Act 199768 would likely be sought were a scenario of individual-targeted, specific repeated instances of verbal aggression to occur. A personal restraining order if successfully applied for may struggle to keep the offending individual away from a hospital setting when said individual is in need of urgent care also.69 Ultimately, this first considered tort is inapplicable due to its inability to capture the targeted one-off instances of conduct, alongside complications around the potential recourse sought being appropriate of effective.
Intentional Infliction of Emotional Distress (IIED), while a seldom used tort, prime facie looks to be the most appropriate course of civil action. It does capture one-off interactions, is pursuable for compensatory damages where the distress is not covered by ACC, and helpfully, for the purposes of this piece, is an intentional tort, therefore requiring will or intention and removing questions of agency. The development of IIED in New Zealand will
67 Harassment Act 1997, ss 2, 3, 8
68 Harassment Act 1997
69 Urgent care would likely qualify as a “reasonable excuse” per s 25 of the Harassment Act 1997, meaning the order would not apply to the subject in that scenario.
now be considered, before establishing the applicable tests and elements, and an appraisal of the likelihood of success in the context of our targeted conduct type.
Prior to 1897, the courts had historically been reluctant to give awards to plaintiffs who had suffered pure mental injury alone. Compensation of the arguably intangible was not deemed to be their role; in a House of Lords case, Lynch v Knight70 this sentiment was articulated; “mental pain and anxiety the law cannot value and does not pretend to redress”.71 The tort of IIED was first established in the United Kingdom case Wilkinson v Downton72 in 1897.
The novel fact scenario of Wilkinson v Downton prompted Wright J to identify an area in need of remedy.73 The defendant told a malicious lie to the plaintiff, that her husband had been in a serious accident (“a smash up”),74 resulting in her suffering violent nervous shock, illness, and lasting consequences to their well-being.75 Existing common law surrounding assault and battery was not applicable – there was no physical threat to the plaintiff, yet the defendant’s wilful act caused great harm. Intention to harm was imputed as a matter of law as it was asserted that the plaintiff’s response of distress was the only natural response to such conduct.76 Thus, a new tort was born (though unnamed at the time), with three distinct discernible elements; 1, A wilful/intentional act; 2, calculated to cause physical harm; 3, that did cause actual harm. Even in its infancy, a problematic (for this dissertation’s purposes)
70 [1861-73] All ER Rep Ext 2344
71 Lynch v Knight [1861-73] All ER Rep Ext 2344 at 2360
72 [1897] 2 QB 57, [1895-99] All ER Rep 267
73 [1895-99] All ER Rep 267 at 269
74 Ibid., at 268
75 Ibid., at 268
76 Ibid., at 269
thread emerges; physical damage must be intended and apparent – mental anguish alone will not suffice. However, this tort and its elements have shifted over time.
In 1922, IIED can be seen to have been adopted by the New Zealand “old” Supreme Court (now High Court) in Stevenson v Basham.77 Though headed as negligence at the time, Hardman J expressly used the elements of Wilkinson v Downton to come to his decision, stating that “it appears to be settled law in England that if a physical injury follows fright or shock caused either wilfully or negligently, and the injury is the natural and direct consequence of the fright or shock and arises from a reasonable fear of personal injury, a defendant is liable in damages”.78 The learned judge added the element of foreseeability of plaintiff to the formulation of this tort; the facts involved an initial third party (the plaintiff) overhearing threats to their husband made by the defendant, which resulted in nervous shock and a tragic miscarriage.79 The defendant knew of the plaintiff’s presence, and therefore the plaintiff was a foreseeable reactionary to his words spoken.80 Hardman J found that although the defendant may not have intended such intense harms, harm was nevertheless intended/wilful, or at least negligent, and that the defendant remained liable for the resultant damages.81 This case added these foreseeability elements to our current-day formulation of IIED, as well as introduced the tort successfully into the New Zealand jurisdiction.
The next addition to the New Zealand elements of IIED came in Bradley v Wingnut Films Ltd82 where the plaintiff unsuccessfully looked to exercise the tort against a splatter film production that briefly displayed a family burial plot.83 While the intention and foreseeability
77 [1921] NZGazLawRp 243; [1922] NZLR 225
78 Ibid., at 229
79 Ibid., at 227
80 Ibid., at 228
81 Ibid., at 232
elements failed,84 Gallen J further expanded upon the tort with an additional requirement of the injury being “more than a transient reaction, however initially severe”.85 Quoting McGechan J in a prior New Zealand IIED case, Tucker v News Media Ownership Ltd,86 Gallen J made reference to the need for “severe emotional distress provided that bodily harm results from it”87 and that a number of English cases had required “something more than mere shock”.88 It was not contentious that the film displaying the plot was shocking,89 and for the purposes of exploration of further elements, Gallen J accepted at face value that this shock may have been sufficient for this expanded standard of lasting harm. While ultimately unsuccessful in its attempts to satisfy IIED, this case added this final piece to the tortious puzzle.
From the line of New Zealand cases discussed, the formulation of IIED in New Zealand can be expressed thusly:
84 Ibid., at 422
85 Ibid., at 416
86 [1986] NZHC 216; [1986] 2 NZLR 716
87 Supra note 82, at 421
88 Ibid.
89 Ibid., at 421
Unfortunately, for the purposes of recourse for the conduct targeted by this piece, in most cases it appears, prime facie, that the elements required for an action of IIED would go unsatisfied. While in certain scenarios, the first three elements may be successful (though there may be issues with element two and the calculation of causing harm; the words spoken would need to give effect to this), where most claims would fall short is the physical manifestation element (five), and the natural consequence element (four). While it seems possible that a judge would find an appropriate link between the conduct and the loss, the nature of the purported loss would firstly need to be sufficiently foreseeable to the defendant, and secondly, become physically manifest. Would the loss (in the form of emotional distress) leading to a physical ailment be foreseeable from a one-off instance of abusive speech? And would it be likely to be more than transitory and sufficiently physical? While both theoretically possible, it appears unlikely that the majority of incidents would meet these requirements, making this tort maladaptive to the current purpose. While a clinical diagnosis is not technically needed, otherwise proving a physical manifestation of mental anguish/harm presents a difficult hurdle to logically overcome.
Although the standard of physical injury or psychiatric illness as a result of an intentional act is present in the United Kingdom jurisdiction also, the 2015 case of OPO v Rhodes90 may have cracked the door ajar for judicial innovation, both in the United Kingdom and potentially New Zealand. OPO v Rhodes concerned an injunction on the grounds of IIED regarding the defendant’s life story being published.91 The plaintiff, a 12 year old child known only as OPO, was initially deemed, in the Court of Appeal, to be likely to suffer
90 OPO and another v Rhodes [2015] 4 All ER 1
91 Ibid., at 2
psychological harm due to some of the content of the book.92 The United Kingdom Supreme Court, on split decision, removed this injunction.93 However, in the dissent of Lord Neuberger, the standard of necessary harm was challenged.94 Lord Neuberger felt the need for physical or psychiatrically diagnosable harm was too high a bar95 and would preclude potential plaintiffs from taking an action.96 He suggested instead that “significant distress”97, including descriptors such as despair, terror, fear, misery, or serious worry98 ought to be a more realistic standard to which to measure the mental damage/harm plaintiffs in IIED cases should have to reach.99Although non-binding dissent, this lower conception of the harm element would go a long way toward rendering IIED usable for the instances of targeted abuse of healthcare providers in New Zealand. Measuring the intangible states of mind would be a difficult task for a given judge but were they willing to apply this standard via judicial innovation and generate a new case law threshold, it may make viable this avenue of recourse.
While in its current form, IIED, and tort law more generally, is missuited to providing redress in our present scenarios of verbal abuse due to the high threshold of physical/psychiatric illness, were a trailblazing judge (or judges) in New Zealand, when presented with an appropriate test case, be willing to take the view of Lord Neuberger and exercise it, there is potential for a lower bar. This would give the tort far more utility, at a time when the sizable class of healthcare providers facing abuse are crying out for a remedy. Might this lack of remedy spur on a judge to make such a shift in case law, like Wright J in the initial case of
92 Ibid., at 1
93 Ibid., at [90]
94 Ibid., at [114]
95 Ibid., at [116]
96 Ibid., at [116]
97 Ibid., at [119]
98 Ibid., at [114]
99 Ibid., at [119]
IIED, Wilkinson v Downton? It remains to be seen. If not, tort law will continue to be maladaptive in providing remedy for the defined instances of verbal abuse of healthcare providers.
III. The Criminal Sphere: Statutory Solutions?
While the civil sphere has rendered no current viable options for legal remedies vis a vis verbally aggressive/abusive behaviour against healthcare providers, there are further angles from which to approach this social issue. The next avenue of possible legal recourse to be explored has been coined in this piece as ‘the criminal sphere’, referring to New Zealand legislation, and the legislature generally, who have the power to enact statute toward goals deemed worthy by the parliament of the day.100
This chapter will begin with a reiteration of the fact that the conduct targeted in this piece is not captured by our current laws pertaining to assault and battery (though provisions within the Summary Offences Act 1989 may be applicable in some contexts). Next, an examination of the role of provisions carrying potential custodial sentences and fines in out judicial system and society generally will take place, before a weighing of New Zealand Bill of Rights Act 1990 (NZBORA) concerns (namely Freedom of Expression and section 7 NZBORA Governor General reports) against any theoretical legislation that may look to capture the targeted conduct of this dissertation is made.
Following this, there will be an investigative analysis of section 112 of the Telecommunications Act 2001, exploring its apparent criminalising of certain speech and conduct, the low thresholds it contains, and the logical inconsistency between its imputed purpose and the reality if how, where, and when people face that certain speech and conduct. It is contended that section 112 is an anomaly and attempts to replicate or expand its ambit for this context would likely fail.
100 “Who makes & applies the law” (27 August 2020) justice.govt.nz <https://www.justice.govt.nz/about/learn- about-the-justice-system/how-the-justice-system-works/who-makes-and-applies-the-law/>
The question of whether the social appetite and political will exists for creation of a provision capable of encompassing the targeted conduct will be asked. Ultimately, it appears that section 112 of the Telecommunications Act 2001 is an anomaly, the NZBORA concerns would likely preclude relevant statute creation, and while there may be social appetite present (in terms of wishing to aide healthcare providers), the political will is more than likely lacking, making the criminal sphere unlikely to be of use for this dissertation’s purposes.
It is appropriate to consider the functions of criminal law and ascertain whether theoretically this is an area and type of conduct applicable for policing via a criminal approach. As expressed by the Ministry of Justice New Zealand, criminal law is a regulatory area that “encompasses the definition, deterrence, and punishment of criminal conduct”, further stating that “the criminal law should reflect both society’s and the State’s expectations for what kind of behaviour should be deemed criminal conduct”.101 This conception of criminal law’s function is particularly relevant for offences against the person, which assault, and presumably any provision that would target verbal abuse and aggression, falls under.
Definition, deterrence, and punishment of crime, aligned with social/State will and expectations of the day is a simple formulation of criminal law’s function applicable to this dissertation, and will therefore be utilised.
As referred to in the introduction of this piece, the conduct targeted by this dissertation does not meet the thresholds of criminal assault102 and battery in New Zealand – it exists in a grey area just shy of the legislative bar for this criminal behaviour; a threat to one’s immediate
101 “Criminal law” justive.govt.nz <https://www.justice.govt.nz/justice-sector-policy/regulatory- stewardship/regulatory-systems/criminal-law/>
102 See “assault” definition per Crimes Act 1961, s 2
bodily security and integrity is required, an element beyond obscene, profane, or indecent speech, even if intending to offend the recipient.103 There may be scope to apply section 4 of the Summary Offences Act 1989 however; were the conduct involved insulting, or offending words addressed to any person, the perpetrator may be liable for fines up to $1000. However, the scope for this provision applies only to public places, and unless the scenario was specific to a public hospital and within a public area (e.g., the waiting room, reception, or carpark for instance), then it would become unapplicable. The targeted conduct, often taking place in private areas, clearly is not, and is purposefully not, captured in the majority of conceivable scenarios of verbal aggression and abuse.
The New Zealand Bill of Rights Act 1990 (NZBORA), while not entrenched, nor holding the power to invalidate contradictory statues, enshrines human rights and freedoms in New Zealand as a deeply important consideration when creating new legislation.104 One such right is freedom of expression, encoded by section 14; “Everyone has the right to freedom of expression, including the right to seek, receive, and impart information and opinions of any kind of form”. Given this human right, one could make the argument that, in a scenario where an accusation of verbal aggression or abuse is made, one was merely expressing an opinion as to the quality or care being received – an entirely valid perspective, so long as this is done civilly. As will be explored, when aggressive or abusive, society and the State have the potential ability to, and arguably ought to, step in.
NZBORA sets the standard to which all other legislation is measured with regard to its alignment with human rights and freedoms.105 It is applicable to all acts passed at any level of
103 Ibid.
104 Susan Glazebrook, Justice of New Zealand “The New Zealand Bill of Rights Act 1990: its operation and effectiveness” (South Australian State Legal Convention, 22/23 July 2004) at [1]
105 Ibid., at [35]
the three branches of New Zealand government, so long as said acts are sufficiently “public”, per section 3.106 Per section 6, where possible, all enactments are required to be consistent with the rights encoded within NZBORA.107 There exists scope for exceptions, so long as the limiting of rights is “reasonable” and is done in a way that is “demonstrably justified in a free or democratic society”, per section 5.108 There do exist numerous limitations upon freedoms provided by section 14, mainly pertaining to trade, with the majority meeting the s5 test for justifiability; false advertising, misrepresentation, deceit, and copyright laws all restrict unfettered expression, but for good reason in the eyes of the State.In the case of a proposed bill erring towards contradiction or inconsistency with NZBORA, the Governor General must report on the provisions they consider problematic to the House of Representatives, per section 7 of NZBORA. This does not preclude the bill from potentially passing into law; it acts as an earmarking of concern to the legislators in the house and those debating that NZBORA issues are to be considered.
With the usual NZBORA oversight for prospective legislation in mind. We turn to an intriguing provision that, it will be argued, limits freedom of expression in a way akin to how any piece of proposed legislation to capture the conduct targeted by this piece would operate. Section 112 of the Telecommunications Act 2001 is worded thusly:
“(1) Every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient.
(2) Every person commits an offence who—
(a) uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech
106 Ibid., at [6]
107 New Zealand Bill of Rights Act 1990
108 Ibid.
or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient; or
(b) in using a telecommunications device, knowingly gives any fictitious order, instruction, or message
(3) Every person who commits an offence against subsection (1) or subsection (2) is liable on conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.”
This wording is from where the working definition of verbally abusive behaviour for this dissertation’s purposes has been sourced, utilising a legal definition of undesirable verbal behaviour encoded into New Zealand law. The thresholds for this offence appear very low, especially when considering the potential for a custodial sentence. The bars for the nature of the language itself would likely be cleared in an instance of verbal aggression or abuse; profane, indecent, or obscene language/sentiments are likely to be common. The requirement of intention adds a necessary layer, or flavour, to the speech used in order to fulfil the provision, but it logically follows that unless said clearly in jest, it is difficult to envisage a scenario where offensiveness is not the intention when such language is employed.
The added dimension of a telephone device places further restrictions on the scope of this provision, placing it appropriately within the Telecommunications Act, meaning that for the targeted conduct of this dissertation, unless the speech was transmitted via a telephone device, an unlikely scenario in the context, it would be unapplicable. There are factors of anonymity, distance, ability to maintain quiet enjoyment of one’s being, and privacy that this provision must have intended to curtail, but at its core, it appears to criminalise offensive speech, albeit in a narrow context. This criminalising of speech should have theoretically activated section 7 of NZBORA and prompted a report from the Governor General on the potential limits on freedom of expression, yet there was silence – no such report could be
found.109 Further, upon review of the Hansard pertaining to the bill at the time, the only relevant commentary on the proposed provision was an affirmation from an opposition of the day member of its appropriateness and acknowledgement of its previous iteration in the 1987 version of the Telecommunications Act;110 “
“Misuse of telephone devices'', is serious. Much of it was in the 1987 Act, but it states: “(1) Every person commits an offence who, in using a telephone device, uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient.'' There is absolutely no doubt that it is right and proper that those provisions be clearly spelt out. I note: “(3) Every person who commits an offence... is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.'' That is right and proper, and we support it.”111
Furthermore, upon review of the relevant 1987 Hansard reviewing the Telecommunications Bill 1987,112 no discussion of the potential ramifications of criminalising speech in this manner could be found. It appears as though this provision may have slipped through the cracks, being passed and still in force today, without adequate scrutiny, nor asking whether such limitations on freedom of expression are “demonstrably justifiable”. Of course, given Parliament’s supremacy,113 and its ability to pass legislation arguably contrary to NZBORA at their discretion, this is legally not an issue, but remains an interesting provision that has operated without any locatable meaningful commentary or question. This provision, though
109 “Section 7 Reports” (14 September 2023) justice.govt.nz <https://www.justice.govt.nz/justice-sector- policy/constitutional-issues-and-human-rights/section-7-reports/>
110 Telecommunications Act 1987
111 5 December 2001 (Sitting extended to 7 December 2001) 597 NZPD (Telecommunications Bill – Dr Paul Hutchinson)
112 24 June 1987 481 NZPD (Telecommunications Bill)
113 Supra, note 100
limited to telephone device correspondence, would otherwise capture the verbal aggression targeted by this dissertation and prompts questions about its purpose and possible expansion of scope beyond telephone devices.
3.2.2 Potential Expansion
Parliament was willing to pass section 112 of the Telecommunications Act 2001, and though locating of discussion has been unsuccessful, it is possible to impute likely intentions of the provision to facilitate consideration of whether expansion of its scope with new legislation would serve to fulfil its purposes further, and potentially provide a source of appropriate legal recourse to healthcare providers in the context of verbal aggression and abuse.
The only factor precluding this provision from being applicable is the need of a telephone device. Were this element not present, the provision would presumably capture the majority of verbally aggressive behaviour via at least one of the descriptors with an intention to offend. The probably specific purpose of this provision then is to be deterrence from, and policing/punishment of, using a telephone device as a medium to verbally abuse others. As previously stated, the anonymity and distance afforded a possible perpetrator were likely key considerations in the creation of this provision, looking to curtail such abuse from afar or from an unknown source. This is a valid and desirable goal, back in 2001 and today, as telephone devices become more and more ubiquitous and a possible source of confrontation or unwanted disturbance. Receiving abuse via a telephone device would clearly be distressing and negatively impactful for the recipient, and therefore Parliament deemed this legislation appropriate, despite possible (albeit seemingly missing) questions around freedom of expression.
However, if one formulates a broader purpose of deterring/policing verbal aggression/abuse generally, looking to prevent the distress and harm caused, why stop the buck at a telephone device? The offensive nature and trauma induced may arguably be more visceral and impactful when received in person versus over the phone. One cannot hang-up when on the receiving end of in-person abuse. There is an inconsistency between the similar, if not worse, harms possible from telephone versus in-person verbal abuse and the ability to apply legislation to pursue recourse/legal relief; if the words spoken are profane, indecent, or obscene and intending to offend, then if spoken over the phone they can result in a prison sentence, yet if the exact same words are presented with the same, if not intensified, harmfulness associated, but form part of an in-person interaction, there the law will not act. If one became verbally aggressive toward a healthcare provider over the phone from outside a given practice, they would become liable, but if acted out at the front desk in-person, they would not. Why is the bar for in-person verbal aggression resulting in any sort of criminal legal response so high, essentially requiring an assault, yet if using the intermediary medium of a telephone, it becomes actionable? Whether either scenario is appropriate for the criminal law sphere is a good point to debate: should section 112 of the Telecommunications Act 2001 have been passed in such a form, or is it too broadly applicable and generates freedom of expression concerns? Conversely, are the standards for in-person abusive interactions rendering a criminal law response, such as the conduct targeted by this piece, too high?
Ought there to be a legislative reaction akin to section 112? Or would limiting freedom of expression in such a way for all interpersonal interactions be steps too far?
This section has shone a light on the proposed inconsistency between the landscape of State legal response to in-person interactions versus over-the-phone interactions. Policing either generates NZBORA concerns, yet none appear to have been adequately voiced when section 112 was brought into being, resulting in the conflicting hypotheticals put forward. A full
analysis of the consistency of section 112 against NZBORA is not appropriate for this piece yet would be intriguing. It has been considered as a means of verbal abuse prevention employed by the State, with its applicability for healthcare providers facing in-person abuse evaluated, and a logical inconsistency identified.
Any attempt to possibly expand the State’s reach from telephone devices to general interpersonal interactions would almost certainly fail, in part due to NZBORA concerns brought about by the policing of speech, but also due to a potential lack of political will. Given the Government's recent backtracking and “shelving” of hate speech legislation,114 any tangential moves toward legislating on speech are highly unlikely to be viable or appropriate in the current political climate.
Backtracking on, and careful calibration of, proposed legislation that may limit freedom of expression/speech can also be seen occurring in other jurisdictions in the context of online censorship, with the importance of this fundamental right being acknowledged and considered, namely in Australia and the United Kingdom.
In Australia, drafting against dissemination of misinformation and disinformation via online platforms has resulted in the Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill 2023. This proposed legislation would give the Australian Communications and Media Authority powers to compel digital platforms to keep and release upon request information pertaining to potential misinformation and disinformation matters.115 The Shadow Minister for Communications has been quick to raise
114 Tess McClure “New Zealand government under fire after shelving Christchurch hate speech reforms” (9 February 2023) The Guardian <https://www.theguardian.com/world/2023/feb/09/new-zealand-government- under-fire-after-shelving-christchurch-hate-speech-reforms>
115 Nabil Al-Nashar “Millions of dollars in fines to punish online misinformation under new draft bill” (25 June 2023) ABC News <https://www.abc.net.au/news/2023-06-25/fines-to-punish-online-misinformation-under-new- draft-bill/102521500>
freedom of speech concerns stating that “this is a complex area of policy and government overreach must be avoided” and that the “public will want to know exactly who decides whether a particular piece of content is misinformation or disinformation”.116 The proposed power to decide what is and is not genuine information is a considerable one, and the current Communications Minister has stated that “the government has no intention of stifling freedom of speech in this area”, indicating that this right is being seriously taken into account.117 Whether the proposed provisions enter Australian law in their current forms remains to be seen, but it is clear that there is strong reluctance to violate, or to be seen to be violating, this fundamental right – a concern that undoubtedly translated to New Zealand legislators when shelving their proposed hate speech legislation.
Last year in the United Kingdom, the proposed Online Safety Bill had initially included drafting that would allow “legal but harmful” content to be subject to control and possible removal, but the relevant provisions have since been expunged due to the erosion of free speech this would bring.118 This backtracking and resultant watering down of what was initially very broad and powerful legislation indicates that freedom of speech and expression are of deep concern to the United Kingdom Government and legislation clearly contradicting such rights ought not to be passed, with more careful consideration and direction given to potential laws governing online content.
Whilst there may be a social trend/appetite for assisting healthcare providers in New Zealand, as evidenced by a number of topical articles coming forth emphasising their plight and calling
116 Ibid.
117 Ibid.
118 Paul Sandle “UK ditches ban on 'legal but harmful' online content in favour of free speech” (29 November 2022) Reuters <https://www.reuters.com/world/uk/uk-ditches-ban-legal-harmful-online-content-favour-free- speech-2022-11-28/>
for improvements,119 drawing a line between a wish to support and a desire to police speech would be much too far, conflating very different sentiments and motives.
There may be an argument, possibly socially supported, to make changes to legislation to better protect healthcare providers from verbal abuse, but in reality, there are too many hurdles to consider and overcome in the criminal context. Political will is likely lacking, but primarily, freedom of expression is a consideration encoded into New Zealand law, and any new legislation looking to limit this (despite current legislation in force arguably doing so) would face much scrutiny. The viability of new legislation as an avenue towards legal recourse for this dissertation’s purposes appears to be lacking for the variety of reasons discussed, despite the anomaly of section 112 of the Telecommunications act and the questions/scenarios it may generate.
119 See Zane Small “Assaults on Te Whatu Ora Health New Zealand staff more than double in a year” (17 June 2023) Newshub <https://www.newshub.co.nz/home/new-zealand/2023/06/assaults-on-te-whatu-ora-health-new- zealand-staff-more-than-double-in-a-year.html> and Sophie Trigger “Nurses plead for more staff as violence and abuse surge in hospitals” (24 April 2023) NZ Herald <https://www.nzherald.co.nz/nz/politics/the- frustration-is-just-boiling-over-longer-wait-times-blamed-for-increased-abuse-in-health- settings/W7KVKNUVAFD4RAO5ISOXRY26N4/>
IV. Health and Safety at Work Act: Employment Law Solutions?
For the purposes of this dissertation, the civil sphere appears maladaptive (without judicial innovation), while the criminal sphere likely lacks the will (given Freedom of Expression concerns) to take action against the conduct targeted. This piece moves now to the realm of employment law, specifically the Health and Safety at Work Act 2015, and the viability of potentially actionable provisions against one’s employer for wrongs faced unduly in the scope of one’s employment relationship. The obligations to provide safe, including psychosocially safe, working conditions will be explored and the legal standards analysed, before considering the current measures in place for the Bay of Plenty locations, governed by Te Whatu Ora, and whether these adequately dispel the employer responsibilities. Potential measures conceivable for employers in healthcare settings to better insulate healthcare providers from verbal abuse will be examined. The likelihood of a successful action by the regulator, Worksafe New Zealand, against one’s employer will be appraised, as well as an assessment of the appropriateness of this remedy to an individual wronged, before an exploration of other means of achieving workplace improvements available to healthcare providers, both individually and as a class, within the realm of employment law.
While Worksafe New Zealand, (the primary health and safety regulatory body) may be leaning towards taking action against substandard conditions, it appears that at the present expected standard of “reasonable practicableness”120, Te Whatu Ora (and other practices modelling in line or above them in terms of providing safe working conditions) are fulfilling their legal obligations. This makes actions against one’s employer using the provisions around the general duty of care are unlikely to succeed but should not stop healthcare providers and their unions from applying pressure to combat issues (primarily staff and
120 Health and Safety at Work Act 2015, ss 36, 44, 22
security resourcing) to improve their conditions. This may not provide recompense for individual instances of targeted abuse but would hopefully decrease overall instances through safer practices and better resourcing.
While there exist a number of origins for law pertaining to work health and safety in New Zealand (including the Health and Safety at Work Act Regulations,121 Worksafe New Zealand Act,122 Hazardous Substances and New Organisms Act,123 Accident Compensation Act,124 among others), the main piece of legislation covering the vast majority of workplaces and employment relationships is the Health and Safety at Work Act 2015. It is primarily applicable to the conduct of ‘PCBU’s (persons conducting a business or undertaking, defined broadly in the Health and Safety at Work Act125), and sets the baseline standards for health and safety in the workplace. As per its section 3 purpose, the Act looks to “provide for a balanced framework to secure the health and safety of workers and workplaces” through a number of measures126 which promote education, representation, communication, and strong working relationships between relevant parties (including PCBUs themselves, unions, and appropriate regulatory bodies – usually meaning Worksafe New Zealand, the primary regulator in New Zealand).
The Act has been constructed with a broad catchment of entities in mind, as evidenced by its wide definition and application to the concept of a PCBU. This scope, without contention, captures those operating a healthcare-providing place of work, whether private or public – all
121 Health and Safety at Work (General Risk and Workplace Management) Regulations 2016
122 WorkSafe New Zealand Act 2013
123 Hazardous Substances and New Organisms Act 1996
124 Accident Compensation Act 2001
125 Health and Safety at Work Act 2015, s 17
126 Ibid., s 3(1) (a) – (g)
are subject to its health and safety standards. The primary duty of care owed by a PCBU to its workers (and others) is housed in section 36, requiring health and safety to be ensured to a standard of ‘reasonable practicability’. Subsection 36(3) furthers this primary duty including, again to the standard of reasonable practicability, provision and maintenance of a “work
environment that is without risks to health and safety”,127 “adequate facilities for the welfare at work of workers in carrying out work”,128 “information, training, instruction or
supervision that is necessary to protect all persons from risks to their health and safety”,129 and that “the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers”.130 These obligations are also imposed upon individual ‘officers’ who must show knowledge or understanding of relevant hazards, as well as exercising due diligence with regard to their management.131 The key legal standard to which all these duties applicable to healthcare PCBUs are held is ‘reasonable practicability’. If this standard is met through health and safety measures, i.e., no reasonably practicable steps toward worker (and other relevant persons132) health and safety are neglected, then the PCBU will have dispelled their statutory primary duty of care, and are prime facie protected from actions asserting insufficient health and safety practices/policies.
The workplace safety to which these duties apply extends beyond mere physical hazards, applying also to mental health133 and includes psychosocial hazards. Worksafe New Zealand guidelines acknowledge that “definitions of psychosocial hazards tend to be broad, and this breadth accurately reflects the complex nature of the relationship between the social
127 Health and Safety at Work Act 2015, s 36(3)(a)
128 Ibid., s 36(3)(e)
129 Ibid., s 36(3)(f)
130 Ibid., s 35(3)(g)
131 Ibid., s 44
132 Ibid., s 36(2)
133 Ibid., s 16 definition of ‘health’
environment and health outcomes”134 while also supplying a working definition: “When referring to work, the term ‘psychosocial hazard’ refers to the aspects of design and management of work and its social organisational contexts that may have the potential for causing psychological or physical harm”.135 The verbally aggressive incidents targeted by
this dissertation fit into this definition of a psychosocial hazard and results in the management and diminishing of this hazard, as far as is reasonably practicable, a responsibility for the PCBU or relevant officer to tend to. A potential action against a PCBU or officer for breaching their primary duty of care (among more specific duties) revolves around this concept of reasonable practicability and whether this obligation is being adequately fulfilled.
What amounts to reasonable practicableness varies greatly between industry contexts, is incredibly fact dependent, and continues to develop, yet guidance is given by section 22 of the Health and Safety at Work Act. The factors to be taken into account are inexhaustibly listed:
“(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or risk; and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising
134 Dr Kirsten Lovelock Psychosocial hazards in work environments and effective approaches for managing them (Worksafe New Zealand, April 2019) at 3
135 Ibid.
the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
This provision makes reference to the hierarchy of risk/hazard elimination and minimisation, incorporating section 30 Management of risks, which imposes further duties upon the primary duty of care of elimination of a risk/hazard, so far as is reasonably practicable, followed by minimisation of the risk/hazard where total elimination is not possible.136
The targeted conduct of verbally abusive/aggressive episodes is dependent upon patient and accompanist attitude and state of mind, meaning elimination is not possible due to the nature of this risk/hazard, and minimisation to as far an extent as is reasonably practicable, given the section 22 factors, must be the goal aimed for to dispel the PCBUs legal obligations.
Weighing up the included relevant matters pertaining to reasonable practicableness reveal a high expectation of measures to be taken. The likelihood of verbal aggression against healthcare workers is evidently high, as is the potential harm from this hazard/risk (as both established in Chapter I). The PCBU/relevant officers know of/reasonably ought to know of this hazard/risk, as well as potentially available and suitable ways to minimise it (as will be further discussed).
The factor of cost is to be considered last in the assessment and design of risk/hazard mitigating steps taken, yet is still a valid factor, and allows a PCBU to neglect potentially applicable and otherwise viable measures toward elimination/minimisation where they can argue the cost is “grossly disproportionate” to the risk/hazard.137 The measures currently in place by Te Whatu Ora, the majority employer of healthcare providers in New Zealand138 and
136 Health and Safety at Work Act 2015, s 30
137 Ibid., s 22(e)
an appropriate baseline of health and safety for the industry, will now be considered against their legal obligations as a PCBU in order to assess the likelihood of success for an action against them under this legislation.
A number of present policies of Te Whatu Ora for Bay of Plenty are available via their official website.139 A centralised collection of nationwide policies could not be found, likely due to the recent formation of Te Whatu Ora, and therefore the Bay of Plenty policies will be used as an appropriate case study from which general conclusions can be made. Rather than analyse each available policy individually, policies pertaining to risk elimination generally as well as those more applicable to risk mitigation concerning the psychosocial hazard of verbally aggressive patients or accompanists will be considered.
The suite of policies and protocols pertaining to Hazard and Risk Management,140 as well as the frameworks and standards to be applied141 create a system that, if operating effectively, acknowledges and fulfils the obligations created by section 30 of the Health and Safety at Work Act; “risks to health and safety must be eliminated so far as is reasonably practicable. If a risk can’t be eliminated, it must be minimised so far as is reasonably practicable.”142 A system including a Hazard Management Procedure, Hazard Identification,143 Risk Assessment, Health Monitoring,144 Hierarchy of Controls to Manage Hazards, and a Risk
139 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Policies and protocols”
<https://www.bopdhb.health.nz/about-us/our-publications-and-documents/policies-and-protocols/>
140 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Hazard & Risk Management Policy No: 2.1.3” (May 2021) <https://www.bopdhb.health.nz/media/wzdjam0p/hazard-and-risk-management2-1-3.pdf> 141 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Hazard & Risk Management – Standards Policy No: 2.1.3 Protocol 1” (May 2021) < https://www.bopdhb.health.nz/media/fnmgdogh/hazard-and-risk- management-standards2-1-3p1.pdf>
142 Supra, note 140 at 1
143 Supra, note 141 at 2
144 Ibid., at 3
Register (Recording and Assessing Risk),145 comprehensively, albeit in broad strokes, as to be applicable to the wide ambit of potential risks, creates a framework that likely satisfies their legal responsibilities vis a vis risk management per section 30 of the Health and Safety at Work Act.
There exists also a four-part planning, review, and evaluation framework, looking to continuously “develop, maintain, and promote a safe working environment”, signalling a commitment to ongoing improvement via a circular “Plan-Do-Check-Act” system.146 The policies, in theory, and if effectively exercised, ought to dispel their legal obligations pertaining to hazard/risk identification and elimination/minimisation.
With regard to patients/accompanists, and security measures that are designed to minimise the risk of, among others, verbal abuse against healthcare providers, there are policies pertaining to visitors and designated support persons,147 trespass,148 alerts,149 threatening behaviour,150 and security.151 A “zero tolerance” approach toward violence and/or aggression is stated, as well as a position of no entry for any visitor deemed a risk.152 Whilst visitation is acknowledged as useful to the healing process, “priority is given to the needs and care of the
145 Ibid., at 4
146 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Health and Safety Management Systems – Planning, Review & Evaluation = Effectiveness Policy No: 5.3.1 Protocol 15” (June 2022)
<https://www.bopdhb.health.nz/media/ggyprd50/health-and-safety-management-systems-planning-review-and- evaluation-effectiveness5-3-1-p15.pdf>
147 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Visitors & Designated Support Persons Policy No: 6.9.4” (September 2022) <https://www.bopdhb.health.nz/media/11zbgxm4/visitors6-9-4.pdf>
148 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Trespass Policy No: 5.5.3” (February 2022)
<https://www.bopdhb.health.nz/media/n5uhvvpn/trespass5-5-3.pdf>
149 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Alerts Policy No: 6.1.5” (February 2018)
<https://www.bopdhb.health.nz/media/mn0gp5cw/alerts615-1.pdf>
150 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Threatening Behaviour, Bullying, Harassment & Violence Management – Standards Policy No: 5.4.7 Protocol 0” (August 2014)
<https://www.bopdhb.health.nz/media/vcld242l/threatening-behaviour-standards547p0.pdf>
151 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Security Standards Policy No: 5.5.1 Protocol 0” (May 2021) <https://www.bopdhb.health.nz/media/tinbr2ll/security-standards5-5-1p0.pdf>
152 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Visitors and Nominated Support Persons – Standards Policy No: 6.9.4 Protocol 1” (September 2022)
<https://www.bopdhb.health.nz/media/fk2l3sht/visitors-standards6-9-4p1.pdf> at 2
patient/client and the safety and security of Te Whatu Ora employees”.153 As discussed earlier in this piece, trespass is an option available to Te Whatu Ora hospitals and staff in scenarios of “endangering personal, [and/or] patients”,154 for which verbal aggression may suffice, but does not exclude those in need of legitimate treatment.155 “Social” alerts are also to be placed upon a patient’s health record where a potential risk to patient or staff security presents itself, presumably often as a result of past interactions.156
For instances of threatening behaviour, an emphasis is placed upon reporting (which is an issue in and of itself, as previously alluded to), and education/training toward de-escalation and defusal of problematic encounters with patients or accompanists.157 The “Preventive Measures” listed in this policy158 while not particularly specific, do seek to create an environment of safety through employee engagement, evaluation of practices, visitor accreditation, and staff education.
Given the extensive web of internal policy around safety systems, and the apparent lack of regulator action against Te Whatu Ora (and previous District Health Boards), it appears likely that the Health and Safety at Work Act standards are being adequately met. However, this does not mean there should not be time given to measures specific to verbal aggression/abuse that could be expanded upon to increase the ambit of protection and may be considerable as reasonably practicable.
153 Supra, note 143, at 1
154 Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Trespass – Issuing A Trespass Notice Policy No: 5.5.3 Protocol 1” (February 2022) <https://www.bopdhb.health.nz/media/5xybg1hp/trespass-
issuing5-5-3-p1.pdf> at 1
155 Supra, note 148
156 Supra, note 149
157 Supra, note 150, at 2
158 Ibid.
The Australian Nursing and Midwifery Federation (ANMF) produced a 10-point plan toward ending violence and aggression in healthcare settings in 2022, from which a number of potential measures and improvements that may translate to the New Zealand context can be distilled.159 A scenario/’criteria’ is given, with high, reduced and low risk solutions being suggested, with low risk being the most likely to minimise aggressive episodes. Although each criterion does pertain to minimising aggression in the setting, the most applicable will be considered.
“Point 1” calls for improved security, with 1.2 advocating not only for adequate security staffing (something Emergency Departments within New Zealand have recently called for in response to violence160) but healthcare specific training to better assist them in performing their duties in context.161 Given the emphasis on staff training in the available Te Whatu Ora policies, it is likely such training is engaged with, but adequate staffing for round-the-clock security personnel remains an issue.
159 Australian Nursing & Midwifery Federation Victorian Branch 10 Point Plan to End Violence and Aggression
– A Guide for Health Services (March 2022)
160 See Alex Spence “Senior doctors call for 24/7 security as ED crisis becomes ‘worst that we have ever seen’” (7 September 2023) NZ Herald <https://www.nzherald.co.nz/nz/senior-doctors-call-for-247-security-as-ed- crisis-becomes-worst-weve-ever-seen/FRF4OBAMB5F6FIXSZVHFQ6YEGE/>
161 Supra, note 159, at 9
162 Ibid., at 10
evidence also.163 There is reference to CCTV usage in “restricted areas” within hospitals in a Security Guidance Framework,164 but this is among other measures (including contact, sound and motion detectors), and likely does not apply to treatment areas. Installing CCTV in actual patient treatment spaces would result in a myriad of privacy concerns that may, among other things, undermine the patient-carer trust relationship, and therefore not be viable.
Personal duress alarms are considered in 1.5,165 with the low-risk solution suggesting both wall-mounted and on-person duress alarms in high-risk locations, alongside regular testing, and training for use. It is unclear what the Te Whatu Ora policy around who receives such personal alarms is, but it would almost certainly improve response to aggressive episodes and provide more peace of mind were they supplied to all staff.
“Point 2” concerns identification of risk to staff and others, and generally emphasises identifying the risk of aggressive patients or accompanists as soon as is practicable166 – a concern presumably sufficiently dealt to by the Alert system Te Whatu Ora has in place.
“Point 6” addresses education and training of staff,167 while “Point 7” looks to integrating legislation into internal policy168 – concerns both well considered in the available Te Whatu Ora policy. A potential, but staff intensive and costly, measure is the notion of nursing in pairs,169 which would likely reduce the risk of outbursts and aggression, as well as go a long way toward more consistently producing corroboration of events (an issue to be discussed in Chapter V).
163 Te Whatu Ora Health New Zealand Capital, Coast and Hutt Valley “Our transparency statement” (12 January 2023) <https://www.ccdhb.org.nz/your-health/our-transparency-statement/>
164 Te Whatu Ora Health New Zealand HISO 10029.1:2023 Health Information Security Framework (June 2023), at 76
165 Supra, note 159, at 10
166 Ibid., at 13
167 Ibid., at 29
168 Ibid., at 33
169 Ibid., at 13
The legal standard to which any and all of these measures/improvements are held is that of reasonable practicableness, as established. The consideration of cost may be the final step when determining the viability of a policy but remains a valid consideration a PCBU may point to as reason for non-implementation/non-reasonable practicability. Cost and funding are the major hurdles to improvements, with the cost likely being cited as “grossly disproportionate” to the risk by a PCBU if the regulator took action for the lack of extensiveness or absence of a particular measure. Given the lack of regulator action in this space, it appears likely that this argument is considered likely to succeed.
Further to this unlikelihood of success in an action using the primary duty of care in the Health and Safety at Work Act is the nature of the penalty. While imprisonment is possible for serious offences by officers,170 fines are often the result of an action. This does not provide compensation to any potential individual victim of specific acts of verbal aggression, but instead are governed by the regulator. While, if successful, an action may send a strong message to an employer of the need to improve conditions for health and safety, the individual receives no recompense via this avenue.
4.4 Other Employment Law Actions
The Health and Safety at Work Act contains a number of other options that employees and unions can take in order to draw attention to working conditions that, while arguably reaching the standard of reasonable practicableness, are undesirable and are not preventing issues such as verbal aggression as concretely as potentially possible. Unions and Health and Safety Representatives in particular should be well aware of their right to be engaged with,171
170 Health and Safety at Work Act 2015, s 47
171 Ibid., s 58
striking on health and safety grounds172 (as has been seen with increasing regularity173), collective bargaining where issues of health and safety may be raised,174 and personal grievance regimes that individuals may pursue for instances where they feel they have been put at an unjustifiable disadvantage.175
A Provisional Improvement Notice could also be issued by a Health and Safety Representative,176 where it is contested that a PCBU is, or is likely to be, contradicting the Health and Safety at Work Act, but this may not be successful for the same reason as a section 36 or section 44 action: Worksafe New Zealand appear reluctant to consider the lack of certain measures as breaching the requirement of reasonable practicability. Continuing to pursue strike action and building public awareness and support are likely the best options available under the Health and Safety at Work Act given the regulator’s inaction and reluctance to pursue other actions.
Despite the extensive health and safety legislation in place in New Zealand, the legal standard for the primary duty of care regarding psychosocial hazards is reasonable practicability. This standard appears to be satisfied in the New Zealand context when the current measures are considered against improvements being potentially grossly disproportionate in cost. Worksafe New Zealand’s reluctance to act against Te Whatu Ora, as the industry standard, indicates that actions under the relevant legislation pertaining to the primary duty of care would be unsuccessful. In this realm however, there exist a number of other ways in which to apply
172 Ibid., s 83
173 Tom Peters “New Zealand doctors hold second strike” (14 September 2023) World Socialist Web Site
<https://www.wsws.org/en/articles/2023/09/15/sbpw-s15.html>
174 Employment Relations Act 2000, s 31
175 Ibid., ss 102, 103
176 Health and Safety at Work Act 2015, s 69
pressure toward increased resourcing to force what would hopefully be better standards beyond the current, albeit legally satisfactory, level.
V. The Evidence Issue
The scenarios and legal analysis within this piece thus far have mostly been theoretical. This section seeks to briefly address the issue of evidence, and the standard of said evidence, required to realistically take an action through any of the realms discussed.
Many potential instances of verbal aggression against a healthcare provider are likely to occur when the healthcare provider is isolated or alone with the patient, or with the patient and accompanist. This may pose an issue of gathering quality evidence toward any given action, as if the purported offender denies the healthcare provider’s recollection of events, or challenges the words spoken, without and corroborating evidence or supporting witnesses to the event, it could quickly become a disputed fact pattern and a case of ‘your word against mine’. The measures of security and staffing discussed in the previous chapter may lend themselves not only to prevention and management of verbally aggressive episodes, but also as a means of producing corroborating evidence. Without corroboration of some kind, the civil standard of satisfying the balance of probabilities, or the criminal standard of beyond reasonable doubt, would both be difficult to achieve. This places emphasis further upon the need for increased staffing and resourcing of healthcare settings when the dimension of evidence required in real world possible actions is considered.
VI. Conclusion
This dissertation, while failing in its initial goal of finding an existing legal mechanism to provide recourse to healthcare providers subjected to instances of specified verbal abuse/aggression, has fulfilled an expository function, shining a light upon the current New Zealand legal landscape in this context and its inability to effectively combat such instances in each of the spheres examined.
The issues raised by the first chapter were not adequately dispelled by any of those that followed.
Chapter II looked to use the tort of IIED to provide redress in a civil arena but failed due to the high thresholds of the relevant elements (namely the need for a physical injury or clinically diagnosable mental condition arising from the conduct). The potential for judicial innovation, possibly aligned with the dissent of Lord Neuberger, opening the door to a civil sphere solution was raised, but development in this area is uncertain without test cases and a like-minded judge.
Chapter III examined the applicability of criminal measures, both existing and potential, in combatting the conduct targeted. The current legislative landscape did not capture the conduct effectively, and while section 112 of the Telecommunications Act 2001 provided interesting insights into the potential to curtail freedom of expression in near analogous scenarios, it was concluded that NZBORA concerns would likely preclude prospective legislation of a type that would be actionable.
Employment law avenues were considered in Chapter IV. The obligations imposed by the Health and Safety at Work Act 2015 were weighed against measures in place by Te Whatu Ora to provide a psychosocially safe workplace for their employees. It was found that the standard of reasonable practicability is likely met, evidenced by regulator inaction in this
space, and potential measures/improvements while conceivable would likely not be viable due to the valid factor of grossly disproportionate cost. Other avenues of pressure exist and ought to be leveraged towards improvements as best they can be.
Finally, a discussion in the real-world concern of corroborating evidence was held, emphasising the reality that adequate evidence in such scenarios can be difficult to attain, and any measure of improvement that might make this more likely would be desirable.
While this piece began as an attempt to find an existing legal solution, and failed to do so, it stands as an expository exploration of the various legal frameworks in place and has done its best to thoroughly examine why they are unable to provide healthcare providers with redress for harms suffered as a result of the targeted conduct. Hopefully, this dissertation may spark further examination and investigation into potential changes possible that might better provide protections for the hardworking healthcare providers we trust with our lives.
VII. Bibliography
A. Cases
Bradley v Wingnut Films Ltd [1993] 1 NZLR 415
Couch v Attorney-General (No 2) (on appeal from Hobson v Attorney-General) [2010] NZSC 27; [2010] 3 NZLR 149
KB v ACC [2013] NZACC 41
MC v ACC [2020] NZACC 32
MHF v ACC [2020] NZACC 18
OSC v ACC [2013] NZACC 117
Stevenson v Basham [1921] NZGazLawRp 243; [1922] NZLR 225
Tucker v News Media Ownership Ltd [1986] NZHC 216; [1986] 2 NZLR 716
Lynch v Knight [1861-73] All ER Rep Ext 2344
OPO and another v Rhodes [2015] 4 All ER 1
Wilkinson v Downton [1897] 2 QB 57, [1895-99] All ER Rep 267
B. Legislation
Accident Compensation Act 2001 Crimes Act 1961Employment Relations Act 2000 Harassment Act 1997
Hazardous Substances and New Organisms Act 1996
Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 Health and Safety at Work Act 2015
New Zealand Bill of Rights Act 1990 Telecommunications Act 1987
Telecommunications Act 2001 WorkSafe New Zealand Act 2013
C. Journal Articles
Alice Fletcher, Marie Crowe, Jenni Manuel, James Foulds “Comparison of patients’ and staff’s perspectives on the causes of violence and aggression in psychiatric inpatient settings: An integrative review” (2021) 28 Journal of Psychiatric and Mental Health Nursing 924David B Collins “Proceedings for Punitive Damages in the Regime of Accident Compensation” (1978) 158 NZLJ 158
Fallon Chipidza, Rachel Wallwork, Theodore Stern “Impact of the Doctor-Patient Relationship” (2015) 17(5) The Primary Care Companion for CNS Disorders
Fatimah Lateef “Patient expectations and the paradigm shift of care in emergency medicine” (2011) 4(2) Journal of Emergencies, Trauma, and Shock 163
John Joby “Patient Satisfaction: The Impact of Past Experience” (1992) 12(3) Journal of Health Care Marketing 56
Paul McNeil, S Bruce Dowton “Declarations made by graduating medical students in Australia and New Zealand” (2002) 176(3) The Medical Journal of Australia 123
Sigridur Halldorsdottir “The dynamics of the nurse–patient relationship: introduction of a synthesized theory from the patient’s perspective” (2008) 22(4) Scandinavian Journal of Caring Sciences 643
Simon Connell “JUSTICE FOR VICTIMS OF INJURY: THE INFLUENCE OF NEW ZEALAND’S ACCIDENT COMPENSATION SCHEME ON THE CIVIL AND CRIMINAL LAW” (2012) 25(2) NZULR 181
Zoe Rheinsberg, Ramin Parsa-Parsi, Otmar Kloiber, Urban Wiesing “Medical oath: use and relevance of the Declaration of Geneva. A survey of member organizations of the World Medical Association (WMA)” (2017) 21 Medicine, Health Care and Philosophy 189
D. Reports
Australian Nursing & Midwifery Federation Victorian Branch 10 Point Plan to End Violence and Aggression – A Guide for Health Services (March 2022)
Australian Nursing and Midwifery Federation Prevention of occupational violence and aggression in the workplace (November 2018)
Dr Jacqui Pich Violence in Nursing and Midwifery in NSW: Study Report (NSW Nurses and Midwives’ Association, University of Technology Sydney, August 2019)
Dr Jinny Willis Employment Survey 2019 Research Advisory Paper Violence and Aggression against Nurses (New Zealand Nurses Organisation, May 2020)
Dr Kirsten Lovelock Psychosocial hazards in work environments and effective approaches for managing them (Worksafe New Zealand, April 2019)
Jill Clendon, Anne Brown, New Zealand Nurses Organisation NZNO Policy, Regulation & Legal Fact sheet: Understanding Duty of Care (New Zealand Nurses Organisation, 2016)
Suzanne Rolls New Zealand Nurses Organisation Submissions on the Protection for First Responders and Prison Officers Bill (2020)
Suzanne Rolls, Lynley Mulrine, Marg Bigsby, John Miller, John Howell, Sue Gasquoine Position Statement – Violence and Aggression Towards Nurses (New Zealand Nurses Organisation, December 2019
E. Parliamentary and Government Materials
24 June 1987 481 NZPD (Telecommunications Bill)5 December 2001 (Sitting extended to 7 December 2001) 597 NZPD (Telecommunications Bill – Dr Paul Hutchinson)
F. Speeches
Susan Glazebrook, Justice of New Zealand “The New Zealand Bill of Rights Act 1990: its operation and effectiveness” (South Australian State Legal Convention, 22/23 July 2004)
G. Te Whatu Ora Materials
Te Whatu Ora Health New Zealand Capital, Coast and Hutt Valley “Our transparency statement” (12 January 2023) <https://www.ccdhb.org.nz/your-health/our-transparency- statement/>Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Alerts Policy No: 6.1.5” (February 2018) <https://www.bopdhb.health.nz/media/mn0gp5cw/alerts615-1.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Hazard & Risk Management Policy No: 2.1.3” (May 2021)
<https://www.bopdhb.health.nz/media/wzdjam0p/hazard-and-risk-management2-1-3.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Hazard & Risk Management – Standards Policy No: 2.1.3 Protocol 1” (May 2021) < https://www.bopdhb.health.nz/media/fnmgdogh/hazard-and-risk-management-standards2-1- 3p1.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Health and Safety Management Systems – Planning, Review & Evaluation = Effectiveness Policy No: 5.3.1 Protocol 15” (June 2022) <https://www.bopdhb.health.nz/media/ggyprd50/health-and-safety- management-systems-planning-review-and-evaluation-effectiveness5-3-1-p15.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Policies and protocols”
<https://www.bopdhb.health.nz/about-us/our-publications-and-documents/policies-and- protocols/>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Security Standards Policy No: 5.5.1 Protocol 0” (May 2021) <https://www.bopdhb.health.nz/media/tinbr2ll/security- standards5-5-1p0.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Threatening Behaviour, Bullying, Harassment & Violence Management – Standards Policy No: 5.4.7 Protocol 0” (August 2014) <https://www.bopdhb.health.nz/media/vcld242l/threatening-behaviour- standards547p0.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Trespass Policy No: 5.5.3” (February 2022) <https://www.bopdhb.health.nz/media/n5uhvvpn/trespass5-5-3.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Trespass – Issuing A Trespass Notice Policy No: 5.5.3 Protocol 1” (February 2022)
<https://www.bopdhb.health.nz/media/5xybg1hp/trespass-issuing5-5-3-p1.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Visitors & Designated Support Persons Policy No: 6.9.4” (September 2022)
<https://www.bopdhb.health.nz/media/11zbgxm4/visitors6-9-4.pdf>
Te Whatu Ora Health New Zealand Hauora a Toi Bay of Plenty “Visitors and Nominated Support Persons – Standards Policy No: 6.9.4 Protocol 1” (September 2022)
<https://www.bopdhb.health.nz/media/fk2l3sht/visitors-standards6-9-4p1.pdf>
Te Whatu Ora Health New Zealand HISO 10029.1:2023 Health Information Security Framework (June 2023)
H. Internet Resources
“Criminal law” justive.govt.nz <https://www.justice.govt.nz/justice-sector-policy/regulatory- stewardship/regulatory-systems/criminal-law/>“Floodgates Principle” (13 June 2023) UOLLB First Class Law Notes
<https://uollb.com/blog/law/what-is-floodgates-principle>
“Healthcare Workers and Work Stress” (21 June 2023) Centers for Disease Control and Prevention < https://www.cdc.gov/niosh/topics/healthcare/workstress.html>
“New Zealand Legal Environment - A summary of the major differences between the New Zealand legal system and other legal systems” (2023) Wilson Harle
<https://wilsonharle.com/legal-information/nz-legal-guides/new-zealand-legal-environment>
“Section 7 Reports” (14 September 2023) justice.govt.nz
<https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human- rights/section-7-reports/>
“Senior doctors call for 24/7 security as ED crisis becomes ‘worst that we have ever seen’” (7 September 2023) NZ Herald <https://www.nzherald.co.nz/nz/senior-doctors-call-for-247- security-as-ed-crisis-becomes-worst-weve-ever- seen/FRF4OBAMB5F6FIXSZVHFQ6YEGE/>
“Who makes & applies the law” (27 August 2020) justice.govt.nz
<https://www.justice.govt.nz/about/learn-about-the-justice-system/how-the-justice-system- works/who-makes-and-applies-the-law/>
Basil Markesinis “tort” (22 August 2023) Encyclopedia Britannica
<https://www.britannica.com/topic/tort>
Future Of Health “For the health sector” (8 July 2022)
<https://www.futureofhealth.govt.nz/health-sector/>
Nabil Al-Nashar “Millions of dollars in fines to punish online misinformation under new draft bill” (25 June 2023) ABC News <https://www.abc.net.au/news/2023-06-25/fines-to- punish-online-misinformation-under-new-draft-bill/102521500>
Paul Sandle “UK ditches ban on 'legal but harmful' online content in favour of free speech” (29 November 2022) Reuters <https://www.reuters.com/world/uk/uk-ditches-ban-legal- harmful-online-content-favour-free-speech-2022-11-28/>
Radio New Zealand “NZ doctor's Hippocratic Oath change passed” (15 October 2017) Radio New Zealand <https://www.rnz.co.nz/news/world/341592/nz-doctor-s-hippocratic-oath- change-passed>
Sophie Trigger “Nurses plead for more staff as violence and abuse surge in hospitals” (24 April 2023) NZ Herald <https://www.nzherald.co.nz/nz/politics/the-frustration-is-just- boiling-over-longer-wait-times-blamed-for-increased-abuse-in-health- settings/W7KVKNUVAFD4RAO5ISOXRY26N4/>
Sophie Trigger “Nurses plead for more staff as violence and abuse surge in hospitals” (24 April 2023) NZ Herald <https://www.nzherald.co.nz/nz/politics/the-frustration-is-just- boiling-over-longer-wait-times-blamed-for-increased-abuse-in-health- settings/W7KVKNUVAFD4RAO5ISOXRY26N4/>
Tess McClure “New Zealand government under fire after shelving Christchurch hate speech reforms” (9 February 2023) The Guardian
<https://www.theguardian.com/world/2023/feb/09/new-zealand-government-under-fire-after- shelving-christchurch-hate-speech-reforms>
Tom Peters “New Zealand doctors hold second strike” (14 September 2023) World Socialist Web Site <https://www.wsws.org/en/articles/2023/09/15/sbpw-s15.html>
Zane Small “Assaults on Te Whatu Ora Health New Zealand staff more than double in a year” (17 June 2023) Newshub <https://www.newshub.co.nz/home/new- zealand/2023/06/assaults-on-te-whatu-ora-health-new-zealand-staff-more-than-double-in-a- year.html>
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