Deceased
Thien Cong Pham
Demographics
27y, male
Coroner
Deputy State Coroner Paresa Spanos
Date of death
2012-12-27
Finding date
2019-12-17
Cause of death
ligature strangulation
AI-generated summary
A 27-year-old male with treatment-resistant schizophrenia died from ligature strangulation by a co-patient at a secure forensic mental health facility. The deceased had multiple admissions for medication non-compliance and psychotic relapse. The co-patient, classified as extremely high-risk for interpersonal violence, was released from seclusion after only three days despite documented difficulty assessing his mental state, marked demeanour changes, and history of violence. Key vulnerabilities included: inadequate bedroom security (unlocked doors overnight), inconsistent enforcement of bedroom closure policy, limited observation fidelity (one nurse falsified records), minimal staffing overnight, and absence of intermediate-security facilities for patients between seclusion and open ward. Risk assessment tools (DASA) underestimated acute violence risk. Medication non-compliance was identified but not escalated to psychiatry. The case highlights systemic gaps in managing extremely high-risk forensic patients and the tension between least-restrictive Mental Health Act principles and practical security needs.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
Drugs involved
IN THE CORONERS COURT Court Reference: COR 2012 5518
OF VICTORIA AT MELBOURNE FINDING INTO DEATH WITH INQUEST Form 37 Rule 60(1) of the Coroners Act 2008 Deceased: Thien Cong PHAM Delivered on: 17 December 2019 Delivered at: Coroners Court of Victoria, 65 Kavanagh Street, Southbank Hearing dates: Directions Hearings: 15 May & 17 July 2017 Inquest: 10 – 12 October 2017 Written Submissions: December 2017 Findings of: Coroner Paresa Antoniadis SPANOS Counsel assisting the Coroner: Leading Senior Constable Kelly RAMSEY from the Police Coronial Support Unit Representation: Mr S. CASH appeared on behalf of Forensicare Mr P. HALLEY appeared on behalf of Thien Pham’s mother, Ms Pham Le Catchwords: Homicide, ligature strangulation, treatmentresistant schizophrenia, Thomas Embling Hospital, medication non-compliance, mental state assessment, observations, adequate staffing levels, risk of interpersonal violence
TABLE OF CONTENTS INTRODUCTION 1 Thomas Embling Hospital (TEH) and its Argyle Unit 2 Mr Pham’s Admission to TEH in April 2012 3
CIRCUMSTANCES PROXIMATE TO DEATH 4 INVESTIGATION & SOURCES OF EVIDENCE 6 PURPOSE OF A CORONIAL INVESTIGATION 7 MEDICAL CAUSE OF DEATH 8 IDENTITY & UNCONTENTIOUS FINDINGS AS TO CIRCUMSTANCES 9 FOCUS OF THE CORONIAL INVESTIGATION & INQUEST 10 PATIENT A’s MANAGEMENT AT TEH 10 Seclusion 11 THE DECISION TO CEASE PATIENT A’s SECLUSION 13
ADEQUACY OF ARRANGEMENTS TO MANAGE PATIENT A IN ARGYLE 16 Management Plan 16 Risk Assessment – DASA 16 Mental State Assessments (MSEs) 17 Medication Compliance 18 Searches 21 15-Minutely, Close Observations 21 PATIENT A’s MANAGEMENT OVERNIGHT ON 26-27 DECEMBER 2012 23
I, PARESA ANTONIADIS SPANOS, Coroner, having investigated the death of THIEN CONG PHAM and having held an inquest in relation to this death at Melbourne on 10 – 12 October 2017: find that the identity of the deceased was THIEN CONG PHAM born on 9 April 1985, aged 27 and that the death occurred on 27 December 2012 at Thomas Embling Hospital, 201 Yarra Bend Road, Fairfield, Victoria 3078 from: I (a) LIGATURE STRANGULATION in the following circumstances:
Mr Pham grew up in the northern suburbs of Melbourne and was a keen sportsman, playing soccer, football, basketball and boxing, as well as participating in weight lifting. He also played classical guitar. In 2000, the family moved to Brisbane and then returned to Melbourne in 2003. After his parents’ separation in 2003, Mr Pham continued to live with his mother.
Mr Pham had been in contact with mental health services since adolescence and experienced his first episode of psychosis at age 16 years.2 He was diagnosed with schizophrenia in 2004, when he was about 19 years old. Mr Pham’s illness was characterised by disorganised thoughts, persecutory and grandiose delusions and hallucinations and a number of psychotropic medications had been prescribed to manage it since initial diagnosis. He was admitted to psychiatric units on several occasions, particularly in 2007 and 2009, following relapse of his illness in the context of apparent non-compliance with prescribed medications and use of illicit substances.3
At the time of his death, Mr Pham was serving a two-year sentence of imprisonment for charges of aggravated burglary and intentionally causing injury. During this custodial term, Mr Pham’s mental health deteriorated such that he required urgent inpatient treatment pursuant to the Mental Health Act 1986 (MHA) on three occasions 1 This section is a summary of background and personal circumstances and uncontentious circumstances that provide a context for those circumstances in which the death occurred.
2 Inquest Brief [IB], Exhibit 19, page 578.
3 IB, Exhibit 19 and Exhibit F.
at Thomas Embling Hospital (TEH), between 17 March and 7 July 2011, from 17 August 2011 to 11 January 2012 and from 17 April 2012 until his death.4 Thomas Embling Hospital and its Argyle Unit
TEH is Victoria’s only secure forensic mental health facility, operated by the Victorian Institute of Forensic Mental Health (Forensicare). It accommodates remanded or sentenced prisoners requiring involuntary mental health treatment,5 individuals detained under a Custodial Supervision Order after being found unfit to stand trial or not guilty of offence(s) due to mental impairment,6 and those detained as compulsory (civil) patients released from custody but awaiting transfer to a local area mental health service.7
TEH comprises of seven residential units, six of which are within the high security perimeter and one of which is inside a separate, low security perimeter. There are two male acute admissions units in which male security patients are generally accommodated, the Argyle unit (Argyle) and the Atherton unit.8
Argyle is a 15-bed unit primarily for mental health patients from the criminal justice system who need psychiatric assessment and acute care and treatment.9 It consists of patient bedrooms, several communal living/dining areas, rooms for activities and group therapy, three seclusion rooms, separate secure courtyards for patients on the open ward or in seclusion, a smokers’ lounge, a communal bathroom, interview rooms, a medical surgery, a visiting room and staff facilities.10
The patient bedrooms of the open ward are situated along two nearly perpendicular corridors; bedrooms on the northern corridor are labelled with numbers (1-10) and those on the eastern corridor with letters (A-E). The enclosed staff station is situated near the apex of the corridors; windows on the upper portion of two of its sides provide an unobstructed view of the northern corridor and, to the west, of a lounge area. The view from the staff station to the eastern corridor is obstructed.11 4 Exhibit F. See also IB pages 681-689, a Forensicare report dated 13 December 2012 indicating that each of Mr Pham’s admissions to TEH were precipitated by deteriorating mental state in the context of interruption of clozapine.
Prior to the first and third admissions, Mr Pham had been non-compliant with clozapine, while before his second admission, clozapine had been erroneously ceased for a period of five days.
5 Pursuant to the Mental Health Act 1986, later superseded by the Mental Health Act 2014.
6 Findings made by a court pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
7 Pursuant to the Mental Health Act 1986, later superseded by the Mental Health Act 2014.
8 Ibid and Exhibit F.
9 Exhibit F.
10 IB Exhibit 4 at page 247.
11 IB Exhibit 4 at page 247 and Video recorded view at the Argyle Unit of Thomas Embling Hospital conducted by Victoria Police Crime Scene Services on 27 June 2017.
Mr Pham’s admission to TEH in April 2012
Unfortunately, non-compliance with clozapine over time led to deterioration of his mental state such that Mr Pham reported auditory hallucinations and increased feelings of paranoia.14 Consultant Psychiatrist Dr Clare McInerny, who assessed Mr Pham in the AAU, considered readmission to TEH warranted pursuant to section 16(3)(b) of the MHA.15
Psychiatric reviews occurred regularly, during which no abatement in Mr Pham’s floridly psychotic symptoms was observed, and he remained largely isolative and resistant to engaging with staff. On 8 May 2012, clozapine was recommenced and titrated over the following weeks given that Mr Pham’s symptoms had previously responded well to it.17
Mr Pham was placed in seclusion between 18 and 27 May 2012 following a physical altercation with a co-patient and threats of violence towards nursing staff, and again between 9 and 14 July 2012 after an assault on a co-patient.18
Although Mr Pham continued to report auditory hallucinations, by late July 2012 his mental state was showing modest improvement and aggressive behaviour in response to psychotic symptoms had significantly decreased.19 12 An antipsychotic medication reserved for treatment resistant psychotic symptoms, available in Australia as Clopine and Clozaril and prescribed pursuant to a strict protocol.
13 An anticonvulsant/antiepileptic medication also used to treat mania and to stabilize mood available in Australia as Valpro and Epilim. It was prescribed for Mr Pham for its mood stabilising properties.
14 Exhibit F.
15 IB page 621ff (Thomas Embling Hospital Discharge Summary).
16 ‘Depot’ refers to a slow-acting, slow release version of a medication administered by injection.
17 Exhibit F.
18 Ibid.
19 Ibid.
Dr Prashant Pandurangi took over Mr Pham’s care from Dr Ranga in August 2012 when he qualified as a Consultant Psychiatrist. The psychiatrist continued regular reviews of Mr Pham, noting ongoing paranoid delusions and reports of auditory hallucinations. Dr Pandurangi also oversaw planning for Mr Pham’s discharge to a Secure Extended Care Unit20 upon completion of his custodial sentence.
In October 2012, Mr Pham reported experiencing adverse side effects from clozapine and asked that paliperidone be re-commenced in its place. After discussing the high probability of deterioration of his mental health if clozapine was withdrawn and securing Mr Pham’s agreement to revert to clozapine if this occurred, Dr Pandurangi re-commenced paliperidone depot and gradually reduced Mr Pham’s clozapine dose over a few weeks.
By 8 November 2012, Mr Pham’s mental state appeared to have deteriorated: he presented as guarded, with little insight into his illness, poor sleep and paranoia about the food from the patients’ kitchen. He was alleged to have damaged the smokers’ lounge and reported ‘feeling stressed … [and] angry’. Mr Pham remained resistant to being treated with clozapine and so, first, his paliperidone dose was increased and, later, his olanzapine dose was also increased.21 Mr Pham remained acutely unwell during his admission to Argyle with ongoing psychotic symptoms.22
21 Exhibit F.
22 Exhibit F.
23 An application was made by Victoria Legal Aid on behalf of Mr A and, on 11 October 2017, I made a Pseudonym/Suppression Order which, omitting formal parts, ordered that:
The identity of the deceased’s co-patient at Thomas Embling Hospital who caused his death and was found not guilty on the basis of mental impairment not be disclosed, published or otherwise broadcast by any person, in any manner whatsoever.
The identity of the said patient be protected during the course of the inquest by referring to him as patient A or Mr A.
The name of the said patient and any potential identifying details are to be redacted from any documents released to third parties, whether pursuant to section 115 of the Coroners Act 2008, or otherwise.
This order remains in force until the death of the said patient or until further order.
24 IB page 314.
Mr A was serving his sixth custodial sentence, having been remanded in custody since 2009 and sentenced in 2010 to seven years’ imprisonment for offences including false imprisonment and intentionally causing serious injury.25 Mr A was classified as an ‘A1*’ high security26 prisoner with a documented history of non-compliance with medication associated with deterioration of mental state, and a significant history of interpersonal violence (IPV), the risk of which increased when his mental health declined.27
By late 2012, Mr A’s mental state appeared to be deteriorating. When psychiatrically reviewed on 16 December 2012, he presented as tormented, suspicious and fearful, had stopped eating meals and had lost weight. As a result, Mr A was transferred from Barwon Prison (Barwon) to MAP for assessment for suspected non-compliance with clozapine. On arrival, he denied thoughts of self-harm, suicide or harm to others, and reported he had been taking his medication and wanted to return to Barwon. He was less settled than usual and refused to discuss his mental state.28
On 19 December 2012, Mr A had a verbally aggressive outburst with staff and, when reviewed by Dr McInerney, was made the subject of an involuntary treatment order under the MHA. Dr McInerney completed the requisite paperwork for transfer to TEH as a security patient and documented Mr A’s risks and alerts as suicide/self-harm, violence, security, medical and psychiatric.29
The clinical management and care provided to Mr A from his transfer to TEH until Mr Pham’s death in the early hours of 27 December 2012 was the focus of the inquest and will be discussed in some detail below.
Suffice for present purposes to say that at about 6.15am on 27 December 2012, Registered Nurses (RNs) Brian Machemedze and Charles Mabhena were alerted to an incident in the room of another (a third) patient. When they ran to investigate, they found Mr A attempting to strangle that patient from behind using a ligature.
25 IB page 319.
26 This categorisation is used by Corrections Victoria for use in the custodial setting; it is not used by Forensicare: IB page 315 and Transcript page 84. Counterintuitively, the A1 – high security rating is the highest security rating used by Corrections Victoria to reflect the prisoner’s level of risk and his/her needs. The ratings are, in descending order: A1() high security, A2 maximum security, B medium security, C restricted minimum security, C2 and C3 minimum security. A1 is a rating that can only be applied and removed by the Assistant Commissioner, Sentence Management Division: Corrections Victoria, Sentence Management Manual available at www.corrections.vic.gov.au/publicationsmauals-and-statistics/sentence-management-manual-part-1.
27 IB pages 323-324, Certificate of Psychiatrist pursuant to the MHA completed by Dr Clare McInerny on 19 December 2012.
28 Mr A’s initial assessment on return to MAP was P1 (Psychiatric – Serious psychiatric condition requiring intensive and/or immediate care) and S3 (Suicide/self-harm, potential risk of suicide or self-harm).
29 IB page 317.
After Mr A was secured in the seclusion room, RN Machemedze recalled that Mr A and Mr Pham had spent quite an amount of time together the previous evening/night and went to Mr Pham’s room to check on him. At about 6.55am, RN Machemedze found Mr Pham in his room, in bed and deceased.
It was uncontentious at inquest that Mr A caused Mr Pham’s death, albeit Mr A was later charged with murder and found not guilty on the basis of mental impairment following a contested hearing in the Supreme Court of Victoria.30
On 27 December 2012, LSC Sean Toohey was appointed Coroner’s Investigator in this matter and compiled the coronial brief of evidence (coronial brief). The Court received the coronial brief on 29 July 2015, following conclusion of the criminal proceedings relating to Mr Pham’s death. Following issues relating to the Mental Health Act 2014 amendments, the final matters relating to Mr A’s criminal proceedings were settled in the second half of 2015. It was then that I was able to substantially progress the coronial investigation.
I received additional material through my assistant Leading Senior Constable Kelly Ramsey from the Police Coronial Support Unit and referred the matter to the Coroners Prevention Unit (CPU)31 for a review of Mr Pham’s and Mr A’s management whilst at TEH. In summary, the CPU advised32 that while no concerns arose from its review of Mr Pham’s clinical management and care, there were some concerns about the clinical management and care provided to Mr A and these became the focus of the further coronial investigation and, ultimately, the inquest.
This finding is based on the totality of the material obtained in the coronial investigation of Mr Pham’s death. That is, the original coronial brief prepared by LSC Toohey, the inquest brief compiled by LSC Ramsay, the statements, reports and testimony of those witnesses who testified at inquest and any documents tendered through them, and the final submissions of counsel. All of this material, together with 30 Mentioned as part of my assistant’s opening at transcript page 4.
31 The CPU was established in 2008 to strengthen the prevention role of the Coroner. The CPU is staffed by experienced investigators as well as practising physicians and nurses who are independent of any health care professionals or institutions involved in a coronial investigation. Clinical staff of the CPU assist coroners by evaluating clinical management and care provided and identifying any areas of improvement so that similar deaths may be avoided in the future. The CPU also assists coroners to formulate prevention recommendations and comments, and monitors and evaluates their effectiveness once published.
32 I received advice from the CPU in November 2015 and June 2016.
the inquest transcript, will remain on the coronial file.33 In writing this finding, I do not purport to summarise all the material and evidence; rather, I will refer to the evidence only in such detail as is warranted by its forensic significance and the interests of narrative clarity.
The term ‘cause of death’ refers to the medical cause of death, incorporating where possible the mode or mechanism of death.
For coronial purposes, the term ‘circumstances in which the death occurred’ refers to the context or background and surrounding circumstances but is confined to those circumstances sufficiently proximate and causally relevant to the death, and not merely all circumstances which might form part of a narrative culminating in death.37
The broader purpose of any coronial investigations is to contribute to a reduction in the number of preventable deaths, through the findings of the investigation and the making of recommendations by coroners, generally referred to as the ‘prevention role.’38 Coroners are empowered to report to the Attorney-General in relation to a death; to comment on any matter connected with the death they have investigated, including matters of public health or safety and the administration of justice; and to make recommendations to any Minister or public statutory authority on any matter connected with the death, including public health and safety or the administration of 33 From the commencement of the Coroners Act 2008 (the Act), that is 1 November 2009, access to documents held by the Coroners Court of Victoria is governed by section 115 of the Act.
34 The term is exhaustively defined in section 4 of the Act. Apart from a jurisdictional nexus with the State of Victoria (s 4(1)), reportable death includes “a death that appears to have been unexpected, unnatural of violent or to have resulted, directly or indirectly, from an accident or injury” (section 4(2)(a)).
35 Section 67(1) of the Act.
36 See section 3 of the Act for the definition of a “person placed in custody of care” and section 4 for the definition of “reportable death”, especially section 4(2)(c), (d) and (e) and note amendments consequent to the passing of the MHA 2014.
37 This is the effect of the authorities – see for example Harmsworth v The State Coroner [1989] VR 989; Clancy v West (Unreported 17/08/1994, Supreme Court of Victoria, Harper J).
38 The ‘prevention’ role is now explicitly articulated in the Preamble and purposes of the Act, compared with the Coroners Act 1985 where this role was generally accepted as ‘implicit’.
justice.39 These are effectively the vehicles by which the Coroner’s prevention role can be advanced.40
At about 10.30am on 27 December 2012, Forensic Pathologist Dr Linda Iles of the Victorian Institute of Forensic Medicine (VIFM), attended TEH and examined Mr Pham’s body in situ. She observed him lying semi-supine in bed; his face was extremely congested and conjunctival haemorrhages were evident along with ligature marks about the neck. Rigor mortis was present and the extremities not in close proximity to the bed were cool.
The following day, Dr Iles reviewed the circumstances of Mr Pham’s death as reported by police to the coroner,43 post-mortem computerised tomography (PMCT) scanning of the whole body and performed an autopsy. Having done so, Dr Iles provided a twelve-page written report, dated 26 February 2013.44
Among Dr Iles’ anatomical findings were multiple ligature abrasions about the neck, extensive haemorrhage within the strap muscles of the neck associated with a fracture of the thyroid cartilage, thymic, epicardial, facial and oral mucosal petechial haemorrhages, and an incidental finding of moderate single vessel coronary artery atherosclerosis.45 39 See sections 72(1), 67(3) and 72(2) of the Act regarding reports, comments and recommendations respectively.
40 See also sections 73(1) and 72(5) of the Act which require publication of coronial findings, comments and recommendations and responses respectively; section 72(3) and (4) which oblige the recipient of a coronial recommendation to respond within three months, specifying a statement of action which has or will be taken in relation to the recommendation.
41 Section 69(1) of the Act.
42 Sections 69(2) and 49(1) of the Act.
43 Police Report of Death to the Coroner (Police Form 83) prepared by Detective Senior Constable Kerry Glassner on 27 December 2012.
44 Dr Iles’ autopsy report is at IB pages 18-29 and includes her formal qualifications and experience.
45 Ibid at IB page 29, Dr Iles made the following comment – “Post-mortem examination demonstrates moderate single vessel coronary artery atherosclerosis. No other significant natural disease was identified. This has not contributed directly to death.”
According to Dr Iles, there were multiple ligature marks about the neck, at least one of which was circumferential and that the thyroid cartilage fracture was consequent to the cartilage breaching its point of maximal flexibility due to the blunt force applied. The pathologist commented that she had been provided with photographs of two shoelaces tied together (found in Mr A’s possession)46 and that the ligature mark was consistent with being inflicted by the shoelaces or a ligature of similar width.47
Routine toxicological analysis of post-mortem specimens detected therapeutic levels of antipsychotic medications olanzapine (at ~0.2mg/L) and hydroxyrisperidone, a metabolite of risperidone48 (at ~50ng/mL), and trace amounts of valproic acid metabolites. No alcohol or other commonly encountered drugs or poisons were detected. These results were consistent with Mr Pham’s medication regime at the time of his death.49
Dr Iles concluded that the cause of Mr Pham’s death was ligature strangulation.
I accept the cause of death proposed by Dr Iles and find that the cause of Mr Pham’s death is ligature strangulation.
Accordingly, I find, as a matter of formality, that Mr Pham died in the Argyle Unit at Thomas Embling Hospital, 201 Yarra Bend Road, Fairfield, Victoria on or about 27 December 2012.
46 RN Machemedze refers to observing the shoelace ligature in Mr A’s hand and removing it and leaving it on the floor outside the seclusion room before Mr A was placed inside: Exhibit B; IB Exhibit 1 (Photograph Booklet A), photographs 49, 50, 58-63 (and Statement of Crime Scene Photographer, SC Rachel Kingston-Lee, IB pages 174178). Biological material located on the shoelaces was forensically examined with analyses providing extremely strong support for the proposition that the major component of the mixture of DNA in the sample originated from Mr Pham: Statement of Forensic Biologist Kate Outteridge at IB pages 183-193.
47 IB pages 18-29 (Dr Iles’ report).
48 Also available as a drug in its own right, namely, 9-hydroxyrisperidone or paliperidone.
49 IB pages 30-35 (Toxicologist’s report).
50 IB page 17.
As is often the case in this jurisdiction, the focus of the coronial investigation and inquest into Mr Pham’s death was on aspects of the circumstances in which the death occurred.
As noted above and based on the advice of one of the CPU’s Mental Health Investigators51 who had reviewed Forensicare records pertaining to Mr Pham, in particular, since his admission to Argyle in April 2012, the clinical management and care provided to Mr Pham whilst at TEH did not appear wanting and was not a focus of the coronial investigation of his death.
In contrast, aspects of the clinical management and care provided to Mr A were the subject of further investigation and ultimately became the focus of the inquest, as they bore on Mr A’s ability to cause Mr Pham’s death without attracting the attention of the nursing staff caring for both of them on the evening of 26-27 December 2012.52
(a) Mr A’s management at TEH between 21 and 27 December 2012 and in particular – i. The appropriateness of the decision to cease his seclusion on 24 December 2012; ii. The adequacy of arrangements to manage Mr A in Argyle’s open ward; iii. Management of Mr A overnight on 26-27 December 2012; and
(b) Improvements made by Forensicare/TEH after 2012.
While these issues are inter-related, I have endeavoured as far as possible to identify the evidence relevant to each issue under the appropriate heading in the paragraphs that follow.
PATIENT A’s MANAGEMENT AT TEH
Mr A was transferred to TEH on 21 December 2012 at the request of Dr McInerney who had reviewed him at MAP on several occasions between 16 and 19 December
Throughout his MAP admission, Mr A presented with notable irritability and 51 Among the CPU’s staff are Mental Health Investigators who are qualified and experienced in psychiatric nursing and psychology. They review medical records at the Coroner’s request and provide preliminary advice about any issues raised by the Coroner or identified by them from the medical records.
52 While the Coroner determines the witnesses to be called and the issues/scope of the inquest (section 64 of the Act), interested parties have a right to be heard as to the question of which witnesses should be called (section 66(1) of the Act. The parties were represented at two directions hearings (15 May and 17 July 2017) and were afforded the opportunity to make submissions about the witnesses to be called and the issues/scope of the inquest.
while he was superficially co-operative, he was resistant to discussing his mental state and clinical staff found it difficult to accurately assess it. He was perceived as ‘somewhat menacing’ at times and had a ‘verbal outburst’ following a misunderstanding with staff on 19 December 2012.53
Mr A’s clozapine levels had been consistently subtherapeutic while at Barwon, though he denied medication non-compliance and there were no reports of observed noncompliance. Early transfer to TEH was considered necessary given the suspected relapse of schizophrenia and Mr A’s history of IPV associated with deterioration of his mental health.54
Mr A was assessed in seclusion on arrival at Argyle on 21 December 2012. A risk assessment identified that he posed a high risk of interpersonal violence, substance abuse, weapon use, property damage, suicide or self-harm, non-compliance with medication and absconding.55
Notes made by nursing and clinical staff between 5 and 6pm on 21 December 2012 describe Mr A’s ‘odd demeanour’56 and ‘unusual’57 presentation and that he provided one-word responses58 during mental state examinations making him ‘very difficult to assess’.59 Dr Pandurangi nonetheless found Mr A’s presentation to be ‘highly indicative of deterioration in mental state’.60 He formulated a plan ‘given the high risk of IPV when he is unwell’ that he continue to be nursed in seclusion over the following days with a gradual transition to the open ward after a testing period of access to the seclusion courtyard in the company of staff commencing that day.61 Mr A was amenable to Dr Pandurangi’s management plan.62 Seclusion
The use of seclusion in psychiatric care – confinement of person at any hour of the day or night in a room in which the doors and windows are locked from the outside – is authorised by the MHA only where necessary to protect the patient or another person 53 IB page 329.
54 Ibid.
56 IB page 333.
57 IB page 332.
58 IB page 332.
59 IB page 335.
60 IB page 338.
61 IB page 338.
62 IB page 338.
from an imminent risk to his/her health or safety, or to prevent absconding.63 Seclusion must be authorised by a consultant psychiatrist or, in the case of an emergency, by the senior nurse on duty.
The MHA requires that individuals kept in seclusion be reviewed at intervals of not more than 15 minutes by a RN and must generally be examined by registered medical practitioner at intervals of not more than four hours.64 While in seclusion and in accordance with the MHA, Mr A was reviewed every four hours by a consultant psychiatrist or psychiatric registrar and by nurses at 15-minute intervals.65
Mr A was generally co-operative with the four-hourly seclusion review protocol, except those occurring at 1am and 5am. Overnight, he ignored clinicians’ requests to perform reviews and so they considered it unsafe to enter the room. Instead, clinicians noted that Mr A appeared to be actually sleeping or trying to sleep, and that he did not seem to be in any distress.66
During reviews successfully completed, Mr A was frequently described as being ‘superficially co-operative’,67 ‘guarded’,68 ‘suspicious’69 ‘tense’70 and ‘unwilling to engage’71 with clinicians or provide insight into his thoughts.72 Clinicians were particularly mindful of Mr A’s history of IPV given that his monosyllabic responses made his mental state difficult to assess.73 Indeed, despite uneventful breaks in the seclusion and unit courtyards on 22 December 2012 accompanied by staff,74 later the same day nursing staff refused to accompany Mr A for a smoke break because they did not feel safe.75
That said, the clinical notes do not disclose any signs that Mr A had shown verbal or physical aggression or violence to anyone.76 Rather, Mr A was compliant with 63 Section 82, MHA 1986 in force at the time of Mr Pham’s death. Most episodes of seclusion at Forensicare relate to incidents of aggression or violence or immediate threats of harm to others: Exhibit D.
64 Section 82 MHA 1986.
65 IB 334-358 (Clinical Notes) and IB 290-312 (Approval/Authority for Seclusion and Seclusion Clinical Observations).
66 IB pages 340, 348, 353 (Clinical Notes).
67 IB pages 342, 344 and 347 for example.
68 IB pages 345, 346 and 347.
69 IB pages 345, 346 and 347.
70 IB pages 345 and 346.
71 IB pages 346 and 351 for example.
72 IB pages 341, 343 and 347.
73 IB pages 343, 344, 346 and 348.
74 IB page 344.
76 See generally the Clinical Notes made during Mr A’s period in seclusion: IB pages 332-358, and in particular notes made at about 2pm on 22 December and 9pm on 23 December 2012; c/f ‘underlying hostility’ noted around 1pm on 23 December 2012 in the context of a possible change to the seclusion plan.
prescribed medications including an increasing dose of clozapine, responsive to staff directions, had taken a number of breaks each day into the courtyards, and later, the garden, with staff – commenting on 23 December 2012 that he found these ‘relaxing’77 – and appeared to be eating and sleeping well.78 He was noted to have a ‘slightly warmer affect’ on 23 December 2012, though he remained difficult to engage.79 THE DECISION TO CEASE PATIENT A’s SECLUSION
Dr Pandurangi reviewed Mr A on the morning of 24 December 2012.80 The psychiatrist noted that Mr A was ‘cooperative’ with the process but that his mental state was difficult to assess due to monosyllabic responses.81 Mr A had poor eye contact, there was no rapport and he appeared ‘mildly distracted’.82 He was irritable when asked about clozapine compliance and the plan for ceasing seclusion.83 Dr Pandurangi observed ‘no overt’ psychotic symptoms but considered Mr A’s presentation as highly suggestive of their presence.84
Dr Pandurangi noted the ‘difficult situation’ presented by Mr A.85 He considered it ‘prudent’ to trial Mr A in the unit courtyard with patients from the open ward to gauge his response and interactions with them before deciding to cease seclusion.86 The psychiatrist noted that ‘although a possible deterioration in mental state would significantly increase his risk of interpersonal violence, historically it ha[d] been difficult to predict these events’.87
Dr Pandurangi was unsure whether further seclusion would decrease Mr A’s risk of IPV given that Mr A believed himself well and not in need of seclusion.88 The psychiatrist directed that Mr A spend time in the unit courtyard with other patients and that if this went well, he would consider ceasing seclusion that day. RN McLoughlin was tasked to develop a management plan if seclusion was ceased.
A Nursing Entry in Mr A’s medical record timed 1.45pm on 24 December 2012 noted that Mr A’s mental state continued to be difficult to assess as he was ‘dismissive and 77 IB page 350.
78 See generally the Clinical Notes made during Mr A’s period in seclusion: IB pages 332-358.
79 IB page 351.
80 IB pages 354-357 (Clinical Notes).
81 IB page 354.
82 IB page 354.
83 IB pages 354-355.
84 IB pages 355-356.
85 IB page 356.
86 Ibid.
87 IB page 356.
88 Ibid.
guarded’ when questioned, with some irritability evident.89 He was provided with RN McLoughlin’s management plan at 1pm and was ‘agreeable’ to it though ‘did not appear to be listening much’ or ‘taking it in’ when it was explained.90 When escorted to the unit courtyard, Mr A spent his time doing laps and was dismissive of staff.
Dr Pandurangi, and Forensicare’s Clinical Director, Dr Maurice Magner, gave evidence about the decision to cease Mr A’s seclusion at inquest. Dr Pandurangi noted that when Mr A was transferred to TEH, there was no clear indication that Mr A was experiencing psychotic symptoms such as delusions or hallucinations, rather, that it was ‘all about his demeanour … and low clozapine levels’; this gave rise to the suspicion that his mental state was deteriorating.94
Accordingly, Dr Pandurangi was mindful of the need to establish two things: whether Mr A’s mental state had, in fact, deteriorated, and, whether he posed an imminent risk to himself or others.95 He observed that the management for each is ‘slightly different’, with an increased dosage of medication the appropriate response to the former and seclusion for management of the latter.
Dr Pandurangi testified that Mr A’s clozapine dose was increased on arrival at Argyle (and there was no report of non-compliance while in seclusion)96 and, given his historical risk of IPV, he took the ‘precautionary’97 step of secluding Mr A ‘for a few days’ for further assessment, with gradual access to the unit.98 89 IB page 358 (Clinical Note).
90 IB page 358 (Clinical Note).
91 Ibid.
92 IB page 155.
93 Ibid.
94 Transcript page 132.
95 Transcript page 134.
96 Transcript page 134.
97 Transcript pages 134 and 176.
98 Transcript page 134.
Both Drs Pandurangi and Magner referred in their evidence to the MHA’s stringent regulation of the use of seclusion. Dr Manger referred to the ‘positive pressure’ placed on psychiatrists by the MHA to cease seclusion as soon as possible99 while Dr Pandurangi stated that he ‘need[ed] to have some object[ive] evidence’100 of imminent harm to justify the continuation of seclusion under the MHA.
During cross-examination, attempts were made to parse a material difference between ‘no deterioration’ and ‘improvement’ in Mr A’s mental state in circumstances where he remained guarded and monosyllabic and so difficult to assess. In short, to identify what it was about Mr A’s presentation that had changed during his seclusion to justify its cessation.
Dr Magner spoke of Mr A being ‘enigmatic’ and that it was ‘difficult to evaluate change’,101 though he recalled nothing in the clinical notes to suggest Mr A ‘shouldn’t come out of seclusion’.102
For his part, Dr Pandurangi noted that in the six days prior to the cessation of seclusion (only three of these spent in seclusion), Mr A had been reviewed twice by three different psychiatrists.103 The psychiatrist conceded that Mr A’s mental state was difficult to assess,104 including on 24 December 2012 when seclusion was ceased. He considered the ‘change’ in Mr A was that ‘actually he was co-operative’: he was compliant with all medical staff during reviews, compliant with medications, followed the directions of staff and when assessed by psychiatrists, though there was a lack of warmth and some irritability, he showed no signs of acute psychosis.
For these reasons, and in the absence of any aggression towards staff,105 Dr Pandurangi considered that by 24 December 2012, there was no evidence that Mr A’s seclusion should be continued106 and rejected the proposition that he should have consulted with a more senior colleague before releasing Mr A from seclusion.107 99 Transcript page 86.
100 Transcript page 134.
101 Transcript page 87.
102 Transcript page 86.
103 Transcript page 158.
104 Transcript page 159.
105 Transcript page 169.
106 Transcript page 177.
107 Transcript page 156.
Management Plan
Risk Assessment - DASA
Not mentioned in the Management Plan is that Mr A was also made subject to daily Dynamic Appraisal of Situational Aggression (DASA) assessments when he came out of seclusion. The DASA is a risk assessment tool that predicts the likelihood of aggression over a very short time-period (24 hours).109 Trained nursing staff assess and scale a patient’s risk of aggression across seven measures: irritability, impulsivity, unwillingness to follow instructions, sensitivity to perceived provocation, ease to anger when requests are denied, negative attitudes and verbal threats.110
A DASA was completed for Mr A on 24, 25 and 26 December 2012. On each occasion, all scores were ‘0’ with the overall prediction of situational aggression estimated as ‘low’. Dr Magner observed that Mr A showed little evidence of his potential for violence during his December 2012 admission and while ‘a review of his DASA ratings may have slightly changed the overall score, … it was unlikely to have indicated an imminent risk for severe violence’.111 Moreover, although the DASA instrument has been well-validated and used in a variety of forensic and general 108 IB Exhibit 12, page 249.
109 Research shows that compared with similar tools it has a higher predictive validity. It measures irritability, impulsivity, and unwillingness to follow direction, a patient’s sensitivity to perceived provocation, how easily a patient is angered when requests are denied, a patient’s negative attitudes, and verbal threats.
110 Forensicare Policy, ‘Clinical Risk, Assessment and Management (Version 1, approved 26 April 2016)’, Appendix 1, IB page 225.
111 IB page 220. Dr Magner also commented that Mr A posed a ‘chronically high’ risk to relational security and was ‘very difficult to read’. Accordingly, it was hard to anticipate when this risk was very high or just average: Transcript page 90.
mental health settings in Australia and overseas, according to Dr Magner, ‘there is always a margin of error’ when using such tools.112 Mental State Examination
Mental State Examination (MSE) is one of the core assessment tools specific to psychiatric specialists. The MSE is a snapshot of a patient’s psychological functioning at a given point in time created by collating information about her/his physical, emotional and cognitive state systematically. The key components of the MSE are appearance, behaviours, mood, affect, speech, cognition, thoughts, perceptions, insight and judgement. MSEs are an important part of risk assessment and inform care and treatment planning.113
There was (and is) no policy or guideline at Forensicare about how an MSE is to be undertaken and documented.114 However, Forensicare’s Director of Nursing, Joanne Ryan, advised that all psychiatric nurses are trained and competent in conducting MSEs and are required to complete a Mental State Examination Competency.115
Ms Ryan indicated that to satisfy the requirement for an MSE she would expect nurses to assess a patient’s presentation, including his/her thoughts perceptions, behaviour and mood and record findings relevant to their assessment of the patient’s mental state in progress notes.116 Assessment occurs through visual observation, direct questioning and listening but the method employed will depend on the staff member, the patient and their relationship.117
Given Mr A’s Management Plan required MSEs twice daily, she expected that these would occur during the morning (7am-3.30pn) and afternoon (1.30pm-9.30pm) shifts.118 Review of Mr A’s medical records confirms that MSEs were undertaken and recorded twice on each of 24, 25 and 26 December 2012 in accordance with the Management Plan.119 The notes continue to depict Mr A as monosyllabic and unwilling to engage in discussions about his mental state; largely isolative in 112 IB page 220.
113 Advice from the CPU November 2015.
114 Exhibit H.
115 Exhibit H and Transcript page 180. It is not clear whether competence is assessed once or on an ongoing basis.
116 Exhibit H.
117 Exhibit H, with which Dr Pandurangi’s expectations for MSEs broadly align: Exhibit F.
118 Exhibit H.
119 Exhibits H and F.
behaviour, with little or no interaction with staff or co-patients120 until about 5pm on 26 December 2012, after which time he and Mr Pham were ‘inseparable’.121 Medication Compliance
Mr A’s evening medication was clozapine.122 At Argyle, medications were administered by nurses from the medication counter of the surgery with evening medications dispensed around 8pm.123
A Nursing Entry in Mr A’s medical record timed 1.20pm on 25 December 2012 notes that the ‘nursing team had a discussion regarding medication compliance last night … ?discussion with consultant re[garding] changing to liquid’ form of Mr A’s clozapine.124 No reference to actual or suspected medication non-compliance appears in medical records dated 24 December 2012 but it can be inferred from the later note that the information was handed over.
Mr A’s medical record contains no note suggesting actual or suspected medication non-compliance on 25 December 2012.
A Nursing Entry in Mr A’s medical record (untimed)125 on 26 December 2012 notes that Mr A took his medication with ‘minimal water and [then] walk[ed] away’.126 RN Dena Rehn, who dispensed Mr A’s medication, thought it was ‘quite clear that he had not swallowed the tablets’.127 She challenged Mr A, saying, ‘You haven’t taken that’128 and asked him to return to the counter twice, but Mr A did not respond. RN Rehn recalled that she ‘backed off knowing there was another staff member standing near him [whom she] didn’t want to put … in danger’.129 She reported Mr A’s ‘noncompliance’ to RN Blanka Pribylova, the medication supervisor for the shift, and later made a note in Mr A’s medical record.130
RN Pribylova followed Mr A down the numbered corridor, asking him to turn around and talk to her so she could determine whether he had taken his medication. Mr A ignored her and continued walking towards his room. RN Pribylova followed him at a 120 IB Exhibit 18, pages 358-363.
121 IB page 156.
122 IB page 364.
123 IB pages 158-159 (Rehn) and 160-162 (Pribylova).
124 IB page 360.
125 But appearing after several notes, the earliest of which is timed 2pm, and before a night nursing entry timed 6am on 27 December 2012.
126 IB page 363.
127 IB Page 158.
128 Ibid.
129 Ibid.
130 IB pages 159 and 363.
distance of about two metres, ‘being very ready to react in case he turned to me’.131 She spoke to him a couple more times and received no response. When she arrived at the door to Mr A’s room, she observed him lying on his bed and looking up at the ceiling. RN Pribylova made further attempts to engage Mr A in conversation, which were ignored. Eventually, Mr A stood up, opened and closed his mouth twice, and then lay back down on his bed.
RN Pribylova reported her interaction to the Shift Leader, RN Tatenda Dangare.132 RN Pribylova stated that concerns about Mr A’s medication compliance were handed over to the night Shift Leader, RN Machemedze, though neither he nor RN Dangare had independent recollections of the content of the handover.133
In 2012, there was no uniform policy or guideline at Forensicare dictating what nursing staff should do when they suspect that a patient has not taken medication, or if they know that is the case.134 The rationale for that position, according to Dr Magner, is that the ‘appropriate response’ to actual or suspected medication non-compliance will depend on the patient, the medication and the circumstances of the noncompliance, even among patients considered at high risk of IPV because the role of medication in mitigating that risk is not linear.135
Ms Ryan gave evidence about her expectations of nursing staff’s response to actual or suspected medication non-compliance. These included that nurses engage with the patient at the time to ascertain whether or not medication had been taken (including by asking him/her to open his/her mouth), if it is clear that the medication had not been taken, to try to convince the patient to take it and, in either case, record the incident in progress notes and hand the information over to the next shift to ensure close monitoring and that the issue is raised with the treating doctor at the next multidisciplinary team meeting.136
Ms Ryan would not expect nurses to ‘badger’137 the patient about actual or suspected non-compliance; rather, to adopt an approach not likely to irritate or anger the patient 131 IB page 161.
132 IB page 161.
133 See RN Pribylova’s statement (IB Page 161), RN Dangare’s statement (IB Page 164) and RN Machamedze’s testimony at inquest (Transcript page 13). This is not to suggest that the information about actual or suspected medication non-compliance was not handed over to the night shift.
134 Exhibits H and F.
135 IB page 220.
136 Exhibit H.
137 Transcript page 186.
and assist longer term strategies to address non-compliance and the reasons for it.138 She would not expect nurses to escalate concerns to a present or on-call consultant unless the patient presented an immediate risk of deterioration or violence.139 Ms Ryan considered the nursing response to Mr A’s ‘suspected medication non-compliance’ appropriate.140
Dr Pandurangi observed that the response to any instance of medication noncompliance by a patient was a clinical decision for the treatment team and would depend on the likely effect of non-compliance on the patient’s presentation, and the characteristics of the medication.141
The psychiatrist noted the strict monitoring protocols surrounding the use of clozapine due its potentially serious side effects at initiation (myocarditis), from long term use (neutropenia and myocarditis) and abrupt cessation after prolonged use (rebound psychosis).142 Dr Pandurangi also noted the requirement to recommence clozapine at the starting dose if more than 48 hours had elapsed since the last dose.143
Dr Pandurangi observed that ‘in general terms’, non-compliance with clozapine ‘over a period of time’ would have a detrimental effect on Mr A’s mental state and would lead to deterioration of his illness and increased risk of IPV.144 However, it was ‘extremely difficult to comment’ on whether missing a single dose of clozapine, ‘on non-consecutive days’, would have had an ‘immediate and direct causal relationship with his risk of IPV.145
Dr Pandurangi testified that he would have expected actual non-compliance with clozapine to be reported by nurses to the on-call psychiatrist.146 However, it was ‘different’ if non-compliance was suspected147 rather than ‘an absolute fact’.148 The psychiatrist expected non-compliance to be reported to a medical registrar or psychiatrist immediately if nursing staff considered it ‘urgent’, for instance due to deterioration of mental state following medication non-compliance.149 Dr Pandurangi 138 Exhibit H.
139 Exhibit H and Transcript page 186-187.
140 Exhibit H.
141 Exhibit F.
142 Exhibit G.
143 Exhibits F and G.
144 Exhibit G.
145 Exhibit G.
146 Transcript page 162.
147 Transcript page 162.
148 Transcript page 164.
149 Exhibit F.
observed that nothing in Mr A’s medical record suggested any behavioural change or deterioration in mental state between 24 and 27 December 2012.150 Searches
Forensicare’s ‘Searches – Environmental and Personal’ policy151 is designed to ensure a safe and secure environment for patients, staff and visitors. The frequency of room searches depends on the patient and the unit.152 Searches are intended to identify and remove any items of ‘contraband’ and provide insight into a patient’s behaviour and mental state.153
‘Contraband’ items are defined in a separate policy document. The definition includes ‘weapons’, including replicas and self-made items, however, what constitutes a weapon is not defined. The rationale for not defining what constitutes a weapon, according to Ms Ryan, is that ‘anything can potentially be used to harm oneself or others’.154 She noted that shoelaces were not normally considered a weapon and had not been identified as an ‘item of risk’ in relation to Mr A or otherwise.155
Somewhat in contrast to this comment, both Ms Ryan and Dr Magner reported that shoelaces (and shoes) are usually removed upon entering seclusion as a means of preventing self-harm,156 suggesting some institutional consciousness of the potential for shoelaces to be used as ligatures.
Mr A’s room was searched as part of his Management Plan on 25 and 26 December
Nothing ‘out of the ordinary’ was located during either room search and Enrolled Nurse (EN) Evan Miller described Mr A as being ‘very compliant’ with the search of his room and his person on 26 December 2012.157 15-Minutely or ‘Close’ Observations
In December 2012, the observation system in place at TEH was a system of General Observations, Close Observations and Special Nurse Observations.158 In broad terms, 150 Exhibit G.
151 Forensicare Searches – Environmental and Personal policy (approved 11 June 2012) at Tab 5 of Exhibit 20, IB pages 776-780.
152 At Argyle, a minimum of two bedroom searches occur each day, at random: Forensicare Searches – Environmental and Personal policy (approved 11 June 2012) and Exhibit H.
153 Exhibit H.
154 Exhibit H.
155 Exhibit H.
156 Exhibits H and D.
157 IB page 165. Coincidentally, Mr Pham’s room was also searched on 26 December 2012 – randomly – and no contraband was located.
158 IB page 216 and Victorian Institute of Forensic Mental Health Police ‘Patient Specials and Close Observation’ (Version 5) last reviewed in September 2011 prior to Mr Pham’s death: IB Tab 5 of Exhibit 20.
General Observations required nursing staff to know a patient’s general whereabouts at all times, Close Observations involved timed visual observations usually not more than 15 minutes apart and Special Nurse Observations – 1:1 nursing or ‘specialling’ – during which a nurse is required to remain with the patient, within sight and at arm’s length, constantly.159
The nature of observations to which a patient is subject depends on his/her needs and risk factors as determined by the treatment team. However, a consultant psychiatrist, medical officer or the shift leader (the nurse in charge) could initiate specialling when a patient has indicated a potential or actual risk.160
The observation policy indicates that Close Observations are intended to involve a ‘meaningful interaction’ between staff and the patient to assist staff to become familiar with the patient’s routine, risk elements and mental state and to begin the process of developing rapport. Close Observations, and interactions arising from this practice, are to be noted in the patient’s clinical file. Nurse-initiated close observations could be ceased by nursing staff if the patient was assessed as no longer being at risk, otherwise a change to the frequency of observations was a decision of the treating team.161
Mr A was on Close Observations due to his ‘historical risk of unpredictable and violence behaviour’.162 At inquest, Dr Pandurangi confirmed that this was his rationale for initiating 15-minutely observations when Mr A entered the open ward on 24 December 2012,163 a decision that would have been reviewed as a matter of course at the next multidisciplinary team meeting on 27 December 2012.
The psychiatrist noted that when Mr A’s seclusion was ceased, there was no evidence to suggest a need for specialling, such as an imminent risk of suicide.164 He also commented that specialling, because it is very intrusive, can heighten the risk to the physical safety of staff.165 RN Machemedze agreed that 1:1 nursing could have ‘made the situation worse’ with Mr A and that 15-minutely observations were ‘sufficient’ 159 IB Tab 5 of Exhibit 20.
160 IB Tab 5 of Exhibit 20.
161 IB Tab 5 of Exhibit 20.
162 IB page 216.
163 Transcript page 167.
164 Transcript page 168.
165 Transcript page 168.
given the information available.166 He confirmed that had it been necessary, additional staff to provide specialling could have been arranged at short notice, even overnight.167
Dr Pandurangi testified that while subject to Close Observations, he expected that Mr A would actually be sighted by nursing staff every 15 minutes and, ‘as far as possible, staff interact with him’.168 The psychiatrist did not expect nurses to interact with patients on Close Observations every 15 minutes.169
RN Machemedze gave similar evidence: while conceding that Close Observations were about meaningful engagement, he emphasised the need to exercise clinical judgment depending on the risk posed by the individual.170 He went on to say that with Mr A, if nurses tried to have meaningful engagement, ‘we’re more likely to have a negative outcome’.171 Indeed, Mr A ‘does not take interactions lightly … [it’s] not always advisable [to] approach because he does not [like] authority always coming up to him’.172 RN Machemedze also observed that simply sighting a patient has ‘value’ because it reduces the risk that s/he will become ‘unnecessarily reactive … or irritated’ and is ‘meaningful’ because ‘you’re not … unsettling the individual who is already settled’.173
Overnight on 26-27 December 2012, RNs Machemedze, Mabhena and Stephen Fan were the 9pm until 7am nightshift staff at Argyle, with RN Machemedze the nurse in charge. All beds were occupied and there were 15 patients in the open ward.174
Neither of the nurses who testified at inquest had an independent recollection of the content of the handover received from the afternoon shift’s RN Dangare.175 While RN Machemedze thought that the requirement to perform Close Observations of Mr A to manage his IPV risk was handed over,176 he was unsure whether suspicions about Mr A’s compliance with medication177 had been communicated. To the best of his recollection, RN Machemedze testified that nothing handed over triggered the need to 166 Transcript page 47.
167 Transcript pages 47-48.
168 Transcript page 138.
169 Transcript page 138.
170 Transcript page 17.
171 Transcript page 17.
172 Transcript pages 16-17.
173 Transcript page 49.
174 Exhibit C.
175 Transcript pages 10 (Machemedze) and 200-201 (Mabhena).
176 Transcript pages 11-12.
177 Transcript page 11.
alter the treatment plan outside the multidisciplinary team meeting due to occur the following morning.178
Both RNs Machemedze and Mabhena had nursed Mr A previously at TEH.179 They were aware of his diagnosis, that ‘within institutions’ he had ‘issues with authority [figures]’, his history of unpredictable IPV and concealing weapons.180 RN Machemedze recalled at times ‘feeling threatened’ by Mr A’s demeanour but felt he had the skills to manage such encounters appropriately.181 RN Mabhena recalled that Mr A was a patient whom nurses generally feared because of the risk he posed to others.182 RN Fan reported spending some time during the early part of the shift reviewing the patient files because he did not usually work at Argyle.183
RN Machemedze divided the shift into three-hour blocks during which the nurses would take turns to undertake Close Observations of Mr A, and complete the patient (presence) checklist hourly.184 He assigned himself 9pm-midnight, allocated midnight3am to RN Mabhena and 3am-7am to RN Fan. The ‘Argyle Patient Check List’ (Patient Checklist)185 and Mr A’s ‘Close Observation Checklist’ (Checklist) were kept on separate clipboards.186
The evidence of the nightshift nurses suggests that they spent much of the shift in the staff station, except when checking on all patients hourly.187 RN Machemedze stated that his ‘primary location’ was in the staff station, in a position from which he could see ‘most of the unit’, though he would ‘stand up and do other things’.188 He conceded that while there was good visibility from the staff station down the numbered corridor and of some communal areas, one had to ‘put your head up … you need to be looking’.189 Nurses had to leave the staff station to see the lettered corridor.190 178 Transcript page 21.
179 Transcript pages 19 (Machemedze) and 200 (Mabhena).
180 Transcript page 18.
181 Transcript pages 16 and 33.
182 Transcript page 200.
183 IB page 144.
184 Exhibits A and B.
185 Exhibit C.
186 Transcript page 54.
187 Transcript pages 36 and 51 and Exhibit A (Machemedze), Transcript page 205 (Mahbena) and IB page 144 (Fan).
188 Transcript page 36.
189 Transcript page 51.
190 Transcript page 51.
RN Machemedze recalled that between 9-10pm, Mr A moved frequently between several of the communal areas which were highly visible to staff,191 spending some of the time with Mr Pham.192
RN Machemedze commented that when performing 15-minutely observations, a nurse may actually sight the patient several times and/or in different locations within the interval between observations. Accordingly, a location noted on the Checklist would not necessarily mean that the patient spent 15 minutes in one place, only that when the timed observation was made the patient was in the noted location.193
Just before RN Machemedze checked on all patients at 10pm, he saw Mr Pham and Mr A walk past the staff station together. After completing his check of patients in the lettered corridor, RN Machemedze started checks in the numbered corridor whereupon he saw that Mr A was in Mr Pham’s room with him. When asked to leave Mr Pham’s room because it was ‘against hospital rules’ for a patient to be in another’s room, Mr A said that they were ‘just listening to music’.194 RN Machemedze reiterated his request that Mr A leave Mr Pham’s room and Mr A complied, sitting instead in the corridor outside Mr Pham’s room, talking and listening to music.195
Shortly before 11pm, Mr Pham asked for and was given some noodles. After he had eaten them, Mr A took the container they had been in, washed it, and returned it to Mr Pham. RNs Machmedze196 and Mahbena197 observed this and that, generally, the two men were ‘hanging around together and being very social’.198 Although on the look-out for bullying or harassment, RN Machemedze observed that co-patients were encouraged to socialise: ‘these are guys who don’t easily make friends’.199 He thought that Mr Pham and Mr A ‘looked very relaxed in each other’s company’.200 Similarly, RN Mahbena testified that the men ‘seemed to be … emotionally supporting each other’ and that there was ‘nothing of concern’ in their interactions.201 In contrast, RN 191 Exhibit B.
192 Transcript page 206.
193 Transcript pages 56-57.
194 Exhibit B.
195 Ibid.
196 Exhibit B.
197 Transcript page 206.
198 Exhibit B.
199 Ibid.
200 Ibid.
201 Transcript page 206.
Fan ‘didn’t notice any interaction’ between Mr Pham and Mr A throughout the night.202
At 11pm, RN Machmedze commenced his hourly check, starting in the lettered corridor. When he conducted his check of the numbered corridor, he found Mr A in Mr Pham’s room again.203 This time when he asked Mr A to leave Mr Pham’s room, Mr A ‘looked at [the nurse] in a very hostile, threatening and aggressive manner’.204 Rather than reiterate his request immediately and risk ‘escalating’205 the situation, RN Machmedze continued with his check and returned to Mr Pham’s room a few minutes later. Mr A had remained in Mr Pham’s room but left when the request to leave was repeated, perhaps with some input from Mr Pham.206 RN Machemedze warned Mr Pham not to allow anyone into his room.
Over the next hour, Mr A and Mr Pham remained in each other’s company. They were seen by nurses in the staff station walking back and forth between the numbered corridor and the smokers’ lounge. During RN Machemedze’s midnight check, Mr A was in the corridor outside Mr Pham’s room.207
At an unspecified time, but prior to RN Mabhena commencing his observation period, RN Mabhena discussed with RN Machemedze his concern about Mr A being in the corridor given that it was time for ‘lights out’ (between 11pm-midnight).208 At inquest, RN Machemedze testified that he had not ‘ignored’ Mr A’s presence in the corridor, rather that he was being ‘patient’ with him ‘because [I] knew what we were dealing with’209 and because it was not unusual for a patient to ‘stay awake and talking to a mate until they are exhausted and go to sleep’.210
While RN Machemedze stated that the fact that Mr A spent so much time over night in the corridor was only concerning because sleep was encouraged,211 RN Mahbena was concerned because it was ‘against the rules’ and ‘dangerous’.212 RN Machmedze told his colleague that provided Close Observations of Mr A were performed, he remained outside Mr Pham’s room and Mr Pham remained happy to talk with Mr A, ‘that should 202 IB page 144.
203 Exhibit B.
204 Exhibit B and Transcript page 33.
205 Transcript page 33 and Exhibit B.
206 Transcript page 33 and Exhibit B.
207 Exhibits B and Checklist.
208 Transcript page 235.
209 Transcript page 51.
210 Transcript page 52.
211 Transcript page 52.
212 Transcript pages 234-235.
be fine’. RN Mahbena discussed this management strategy with Mr Pham and Mr A, both of whom were content with it.213
Over the next three hours, during the period RN Mahbena was performing Close Observations, Mr A was noted as being in the numbered corridor.214 At each of the 13am patient checks, RN Mahbena saw that Mr Pham was in his room and that Mr A was in the corridor outside it. When asked if he was alright, Mr A said he was and that he was talking to Mr Pham.215 RN Mahbena’s entries on the Patient Checklist reflect his observations that both Mr Pham and Mr A were awake at 1am and 2am, but that only Mr A was awake at 3am.216
RN Mahbena could not recall whether, when he last checked on Mr Pham at 3am, the door to Mr Pham’s bedroom was closed.217 The doors of patient bedrooms lock when fully closed and can only be re-opened from the inside or, from the outside, by a staff member using a key.218 It was Forensicare’s policy that patient bedroom doors be kept shut at night.219 However, RN Mabhena testified that although staff encouraged patients to keep their doors shut for their own safety, ultimately it was the patient’s choice whether or not to do so – ‘what can we do?’220 Some patients preferred their door to be left ajar or open for ‘fresh air’ or because they wanted to let in some light from the corridor.221 RN Mabhena recalled having a conversation with Mr Pham overnight on 26-27 December 2012 about closing his door but he was content for it to remain open because he could not sleep and was talking with Mr A.222
RN Fan was responsible for performing Close Observations of Mr A between 3.15am and 7am, though between 4.15am and 5am, RN Mabhena made 15-minutely observations as his colleague was required elsewhere.223 RN Mahbena recalled that Mr Pham’s bedroom door was shut when he performed the 5am patient check.224 All entries made on the Checklist between 3.15am and 5.45am record Mr A as being either in his room or in bed.
213 Transcript page 236.
214 Checklist.
215 Exhibit I.
216 Exhibit C and Transcript pages 206-207.
217 Transcript pages 227-228.
218 Transcript page 227.
219 Transcript pages 100-101 and 227.
220 Transcript page 232.
221 Transcript page 232.
222 Transcript page 232. RN Machemedze stated that Mr Pham preferred his door open: Exhibit B.
223 Exhibits C and A.
224 Transcript page 228-229.
Around 6am, RN Mahbena had started writing nursing notes in each patient’s clinical file for the overnight shift when Mr A presented at the staff station to request toiletries which were provided. RN Fan recorded on the Checklist that Mr A was in the bathroom at 6am. Mr A returned the toiletries to RN Machemedze in the staff station around 6.10am.225
A few minutes later, RNs Machemedze and Mahbena were alerted by a patient to an incident in room A in the eastern, lettered corridor. Upon arriving, they saw Mr A with his hands around a patient’s neck. Both nurses activated their duress alarms at 6.16am.226 The nurses physically removed Mr A’s grip from the other patient. RN Machemedze confiscated shoelaces from Mr A and then remained with the assaulted patient in room A while RN Mabhena escorted Mr A to the smokers’ lounge and monitored him. A medical emergency message was received by the TEH control centre at 6.18am.227
Upon arrival of additional staff, RN Machemedze asked Mr A to come out of the smokers’ lounge, which he did, and he was escorted to seclusion without incident.228
Around this time, the morning shift nurses had arrived. RN Machemedze performed a handover and, while doing so, recalled that Mr A had spent a lot of time with Mr Pham overnight and went to check on him.229
RN Machemedze noticed that, unusually, the door to Mr Pham’s room was closed.230 Looking through the glass panel in the door, he saw Mr Pham lying in bed facing the wall. RN Machemedze knocked, but there was no response from Mr Pham. He unlocked the door, calling out to Mr Pham and then shaking him when there was no response. RN Machemedze pulled Mr Pham’s shoulder towards him, disturbing the blanket and revealing a ligature mark around Mr Pham’s neck. Mr Pham was not breathing and pulseless.231 RN Machemedze’s duress alarm was activated for a second time at 6.55am.232 225 Exhibit A.
226 Exhibit A.
227 Exhibit A.
228 Exhibit A.
229 Exhibits A and B.
230 Exhibit B and Transcript page 228 (RN Mahbena recalled that his colleague had to unlock Mr Pham’s door).
231 Exhibit B.
232 Exhibit A.
Both RNs Machemedze and Mahbena gave evidence that prior to finding Mr A assaulting a co-patient, the shift had been ‘normal and non-eventful’,233 and that there had been ‘nothing obvious’234 to suggest Mr A was contemplating violence.
However, RN Mahbena believed that had there been more than a ‘skeleton staff’ overnight,235 there would have been more options for Mr A’s management, he could have been specialled or staff could have been ‘more assertive’ in removing him from the corridor.236
In contrast, RN Machemedze testified that there was nothing to suggest a clinical need to escalate to a psychiatrist or that more intensive observations would have mitigated Mr A’s risk of IPV.237 He observed that a patient’s mental state and a risk of IPV might change suddenly, siting Mr A’s activities between 6am and 6.15am as an example.238
Throughout the six o’clock hour, RN Fan purportedly continued to make Close Observations of Mr A. However, the entries he made on the Checklist between 6.15am and 6.45am show clear evidence of overwriting. Overwriting – necessitated by RN Fan having pre-filled “observations” in advance – was characterised by Dr Magner as falsification of those records and a serious breach of policy that was ‘unacceptable’.239 RN Fan later admitted to Forensicare management that he had falsified the above-mentioned entries on the Checklist and chose to resign in the face of likely disciplinary action by Forensicare.240 In my view, a pall of uncertainty is therefore cast over the accuracy of all Close Observations of Mr A made by RN Fan on 27 December 2012.241
When asked at inquest, RNs Machemedze and Mahbena and Dr Magner denied that there was a ‘culture’ of falsifying observation records or non-adherence to patient observations policy at Forensicare.242 Both RN Mahbena and Dr Magner referred to retrospective note-taking243 due to the ‘pressures of the clinical environment’ – that is, 233 Exhibit B.
234 Transcript page 242.
235 Transcript page 239.
236 Transcript page 240.
237 Transcript page 46.
238 Transcript pages 42-43.
239 Transcript pages 102-103.
240 Exhibit E.
241 I note the concession made by Forensicare in its submission dated 24 November 2017 that doubt was cast over the accuracy of RN Fan’s observations on 27 December 2012.
242 Transcript pages 40-41 (Machemedze), 216-217 (Mahbena) and 103, 108 (Magner).
243 Transcript page 217 (Mahbena).
completing written records of observations actually taken after the fact – but that ‘deliberately falsifying in advance is something else’.244
I note Dr Magner’s evidence that since TEH was designed during the 1990s, the demand for mental health treatment for very ill individuals with very high needs in the custodial setting has increased exponentially.245 The Clinical Director observed that Mr A is an ‘unusually difficult individual’246 even within the small subset of mentally unwell prisoners who require very high levels of security247 because his risk of IPV seems to be chronically high and it is difficult to anticipate when this risk is very high or ‘just average’.248
Dr Magner also drew an important distinction between risk management practices in a custodial setting – where high security prisoners could be managed long term in conditions of 23-hour per day lockdown – and the tools available under and compatible with the “least restrictive intervention” principles that underpin the MHA.249 He opined that notwithstanding that TEH’s facilities were limited (to seclusion and the open ward) and management options to some degree constrained by the therapeutic paradigm of the MHA, Mr A was ‘adequately managed’ at Argyle in December 2012 but could have been better-managed if there was an additional high security facility.250
Dr Magner gave evidence about the internal review and the Office of the Chief Psychiatrist’s review of clinical practice and safety conducted following Mr Pham’s death, and about Forensicare’s responses to the recommendations arising from them.251 A synopsis of the key developments appear in the paragraphs that follow.
Dr Danny Sullivan, Assistant Clinical Director of Forensicare, conducted a review of security at TEH, particularly in the male acute units, using Security Needs Assessment Profile (SNAP) and other validated tools. Upon completion of the review in November 2013, Dr Sullivan reported that there are small number of patients who cannot be managed safely in the existing male acute units. He recommended that a 244 Transcript page 103 (Magner).
245 Transcript page 97.
246 Transcript page 89.
247 Transcript page 83.
248 Transcript page 90.
249 See generally, Transcript pages 87 and 89.
250 Transcript page 85.
251 Transcript pages 99-102.
high security unit be developed to provide for the assessment, stabilisation and shortterm management of some acute admissions, and potentially for the longer-term management of patients who continue to pose a serious risk of IPV. The security review’s findings were shared with the Department of Health.252
The Panel may consider transfers of prisoners without a ‘V1’ classification but whose prison history are otherwise ‘of concern’. The Panel is now regularly used and, according to Dr Manger, is ‘functioning effectively’ though no formal evaluation of it had occurred as of the date of the inquest.254
On 4 January 2013, Forensicare implemented a policy of requiring nursing staff to close patients’ doors on every hourly overnight check from the start of the nightshift.255
Duress alarms were installed in the bedrooms of all units along with corridor alarms in acute units which trigger in the staff station to alert staff of patient movements.256
Forensicare has consulted with the Departments of Health and Human Services and Justice and Community Safety to assist current and future service needs planning. The Department of Health and Human Services has committed to establishing a High Dependency Unit to provide a higher level of treatment for high risk patients for short periods.257 252 IB pages 213-218 (Dr Magner’s statement dated 8 March 2016).
253 Ibid.
254 IB pages 213-218 (Dr Magner’s statement dated 8 March 2016) and Exhibit D. It is uncontroversial that Mr A was such a patient and would have been managed by reference to this regime had it been in place at the time.
255 IB pages 213-218 (Dr Magner’s statement dated 8 March 2016).
256 Ibid.
257 Ibid.
In response to the absence of a differentiated care environment at TEH between seclusion and the open ward, the Acute Male Unit Clinical Governance Team undertook a review to address the absence of an intermediate care zone for the management of high risk patients. De-escalation areas have since been introduced in all acute units within TEH.258
In late 2013, Forensicare created a working party to review its risk assessment tools.
In early 2014, a new Risk Assessment Framework was established to standardise the tools used for common clinical risks and specific risks, including those for violence.
A new tool was introduced, the Short Term Assessment of Risk and Treatability (START), to complement the DASA and Historical Clinical Risk Management tools already in use. By August 2016, more than 90% of Forensicare’s nursing staff had been trained in the use of the START tool.259
In May 2013, Forensicare established the Nursing Working Group (NOWG) to review nursing observation procedures within TEH. A new observation policy – Patient Observation and Engagement Policy - was developed and implemented in February 2014 (and was reviewed in August 2015). The new policy has a greater focus on using observation to engage with patients rather than simply observing their movements and behaviours. Timed observations have been abandoned in favour of system of General, Constant and Special Observations. All patients remain under General Observation at all times, with higher levels of observation prescribed by the Consultant Psychiatrist in light of factors including clinical need, assessed risk, patient behaviour, state of mind and environmental issues, and the need for Constant or Special Observation is reviewed daily.260
The nurse in charge is responsible for ensuring that the appropriate level of observation for each patient is provided at all times. Constant and special observation of a patient occurs by a designated clinician for a period of up to two hours, during which the clinician must report any changes to the patient’s mental state and behaviour immediately to the nurse in charge and document specified matters261 in the clinical record at the end of that period.262 258 Ibid.
259 Ibid.
260 IB pages 213-218 (Dr Magner’s statement dated 8 March 2016).
261 The patient’s state of mind, changes to the assessed level of risk, description of levels of engagement and rapport and a description of activities and rest periods.
262 IB pages 213-218 (Dr Magner’s statement dated 8 March 2016).
The standard of proof for coronial findings of fact is the civil standard of proof on the balance of probabilities, with the Briginshaw gloss or explications.263 The effect of the authorities is that Coroners should not make adverse comments or findings against individuals unless the evidence provides a comfortable level of satisfaction that they caused or contributed to the death and in the case of individuals acting in their professional capacity, only where there was a material departure from the standards of their profession.
It is axiomatic that the assessment of any departure from norms or standards must be judged strictly without the benefit of hindsight. The trajectory that leads to a death of one patient at the hand of another may well be obvious after the event. Patterns or causal connections that can be traced from the privileged position of knowing the tragic outcome, may not have been obvious or even appreciable before the event. This is particularly so with individuals who have a recognised chronic risk of interpersonal violence as well as a presentation that is difficult to read.
Having applied the applicable standard of proof to the available evidence, I find that: a) Mr Pham’s clinical management during his April 2012 admission to TEH was reasonable and appropriate; b) When seen in the context of the Mental Health Act 1986 which governed the clinical management and care provided to Mr A at TEH, the decision to cease Mr A’s seclusion on the afternoon of 24 December 2012 was a reasonable response to his modest clinical improvement; c) The Management Plan in place upon Mr A’s transfer to Argyle’s open ward was reasonable in its inception; d) Mr A’s management by 15-minutely observations was appropriate in the circumstances; 263 Briginshaw v Briginshaw (1938) 60 C.L.R. 336, especially at 362-363. “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issues had been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…”
e) The nursing response to incidents of suspected medication non-compliance by Mr A on 24 and 26 December 2012 was reasonable in the circumstances and would likely have been addressed at the next scheduled ward round on the morning of 27 December 2012; f) No good excuse was proffered for the failure to enforce Forensicare’s policy that patient bedroom doors remain closed overnight and this aspect of the clinical management and care provide both to Mr Pham and Mr A was suboptimal; g) That said, had the policy been enforced and Mr Pham’s door closed, Mr Pham would still have been able to open the door himself from the inside and could have left his room or allowed Mr A to enter, without necessarily coming to the attention of nursing staff immediately; h) Without the benefit of hindsight, it is not possible to find that Mr A’s interest in and social interaction with Mr Pham overnight on 26-27 December 2012, was suspicious or such as should have raised concerns in the nursing staff about his safety in the company of Mr A; i) Close Observations of Mr A purportedly conducted by RN Fan on the morning of 27 December 2012 are unreliable and his falsification of observation records between 6.15am and 6.45am on that date falls well below the standards expected of Registered Nurses at THE and in any other context where observations are ordered; j) I am consequently unable to determine the time on 27 December 2012 when Mr Pham died, though I am satisfied that his death occurred sometime after 2am and prior to 6.55am; k) The changes to systems, policy and practices at TEH implemented by Forensicare since Mr Pham’s death are likely to reduce the risk of deaths occurring in similar circumstances in the future.
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