At Last a Compensation Scheme for Nurses Injured By Assault
Settlement Terms arrived at under the auspices of the Labour Relations Commission have at last seen the introduction of a compensation Scheme for nurses injured by assault. You will recall that the dispute arose as a result of years of broken promises and more recently the non-application of Labour Court Recommendation 18864, which recommended that a scheme for physical and psychological injury be put in place.
The settlement terms of 14th May 2008 were contingent on Government acceptance of the proposals relating to psychological trauma.
A Cabinet meeting at the end of June 08 approved a Compensation Scheme for Psychiatric Nurses to include cover for psychological trauma fully in accordance with the terms of the settlement of the dispute at the LRC on 14th May.
Subsequently a draft scheme issued from the HSE-EA and an examination of the proposals highlighted a number of anomalies over that of the LRC agreement. These were formally raised with the HSE-EA by letter of 3rd July 08 but it is fair to say that most of the anomalies were not major and related to wording and issues of clarification.
On Sept 11th 2008, a revised draft scheme was received that reflected the agreement reached at the LRC. That was put to ballot and accepted. The formal Circulars issued on 26/11/08. The scheme is in two parts:
• The first element of the scheme is an insurance based scheme which will provide for compensation for physical injury and provides for personal injury cover for nurses employed in the Mental Health Services who are assaulted in the course of their duties. The schedule of benefits cover 46 categories of injury ranging from €5,000 to €100,000 and will operate from 16th May 2008.
• The second element of the scheme is an insurance based mechanism to address significant trauma that will provide for a fixed quantum of compensation in respect of PTSD arising from trauma in line with that outlined in the scheme. This scheme can only be utilised following an assault by a patient where no physical injury occurs, or, where a physical injury occurs which has not led or will not lead to a claim under the Physical Injury Scheme and which results in a recognised medically certified psychiatric condition/s (WHO ICD listings). In summary this scheme provides for an award of €15,000 in particular instances which are outlined in the Circular. The scheme will operate from 15th July 08.
• Operational dates for both schemes as set out above relate to the date of issue of the insurance policies. However there is a retrospective element to these schemes and the LRC agreement of 14th May states.
“To clarify that the scheme and mechanism shall be implemented on the date of issue of the insurance policy. However, the effect of the Court’s intention in setting an implementation date of 29th March 2007 shall be preserved by implementation of the Court’s intention in regard to the then lodged 40 (approx) cases and also to deal with cases which have been recorded in the system (incident report form) since.”
• It must also be recorded that proposals to deal with the nurses stabbed in Artane in 1993 have been accepted by the nurses and their legal representatives.
Please also note:
The 5/6ths Scheme will continue to operate as normal.
There is agreement that both Management and Unions are committed to implementation of the recommendations and findings of the National Joint Working Group on managing violence and aggression in the workplace, chaired by Mr Pat Harvey. This report which has just issued can be accessed on www.PNA.ie.
This agreement does not limit in any way the legal entitlement of any individual to pursue claims in any external (to HSE) forum.
There is a requirement to report incidents within 48 hours.
The claim procedure is set out in the circulars.
The circulars which issued from Mr Sean McGrath National Director of Human Resources HSE, are reproduced in part on the following pages. However there is significant detail attached to the insurance based mechanism to address significant trauma and it is not possible to produce in full in this article but it can be downloaded from the PNA website as can both circulars on www.pna.ie.
(A ) Insurance Based Scheme for Nurses Employed in Mental Health Services
Following acceptance by the HSE, PNA and SIPTU of Labour Relations Commission proposals, concerning a Personal Injury Insurance Scheme for nurses in Mental Health Services, the provisions of HSE Circular 04/2008 on the above matter have now been amended to read as follows:
“I refer to the introduction of a scheme of personal injury cover for nurses employed in Mental Health Services who are assaulted during the course of their duties.
As you may be aware, the introduction of such a scheme has been the subject of protracted engagement with staff representatives, particularly, though not exclusively, in relation to the matter of psychological trauma. The revised Insurance Based Scheme provides a set of payments associated with the agreed range of physical injuries; those payments to incorporate compensation in respect of psychological trauma normally expected in cases of assault leading to physical injury. The event insured against is assault arising as a direct consequence of the insured person’s employment, which shall, independently of any other cause, be the sole cause of any of the assaults. Cover will operate on a 24 hours basis, in the relevant hospital, home centre, patients’ home, travelling as part of the nurse’s employment to and from patients / clients.
The Insurance Based Scheme came into operation on 16 May 2008”.
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Benefits
The schedule of benefits payable under the scheme, are as follows:
Benefit Amount
1 Death €25,000
2 Loss of two or more limbs or both eyes or one of each €100,000
3 Loss of sight in one eye €30,000
4 Permanent and total loss of speech €100,000
5 Permanent and total loss of hearing in both ears €100,000
6 Permanent and total loss of hearing in one ear €30,000
7 Permanent and total loss of use of one limb €75,000
8 Permanent and total loss of use of one big toe €12,500
9 Permanent and total loss of use of any other toe €10,000
10 Permanent and total loss of use of one thumb €20,000
11 Permanent and total loss of use of one forefinger €12,500
12 Permanent and total loss of use of any other finger €10,000
13 Permanent and total loss of use of one hand €30,000
14 Permanent and total loss of use of shoulder or elbow or wrist €20,000
15 Permanent and total loss of use of hip or knee or ankle €20,000
16 Total loss of use of back or spine (excluding cervical) without cord involvement €30,000
17 Total loss of use of neck or cervical spine without cord involvement €30,000
18 Removal by surgical operation of a kidney €20,000
19 Quadriplegia €100,000
20 Paraplegia €100,000
21 Fracture to leg or arm €12,500
22 Fracture to hand €10,000
23 Fracture to skull €12,500
24 Fracture to cheek or nose or jaw €10,000
25 Fracture to vertebra €12,500
26 Fracture to rib or sternum €7,500
27 Fracture / dislocation to hip or pelvis €12,500
28 Bodily injury resulting in treatment requiring sutures €5,000
29 Dislocation of shoulder or arm or elbow or wrist €10,000
30 Dislocation of thumb or finger €5,000
31 Dislocation of knee or ankle €12,500
32 Dislocation of foot €7,500
33 Dislocation of big toe or toe €5,000
34 Burns or scalds to any area apart from the face requiring hospitalisation €6,000
35 Bite injuries resulting in medical treatment €7,500 -
36 Contusion or haematoma or laceration to spleen €10,000
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37 Contusion or haematoma or laceration to heart €10,000
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38 Contusion or haematoma or laceration to bowel or digestive system €10,000
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39 Contusion or haematoma or laceration to bladder €7,500
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40 Contusion or haematoma or laceration to kidney €12,500
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41 Contusion or haematoma or laceration to lung €10,000
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42 Crushing injury to foot €5,000
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43 Crushing injury to hand €5,000
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44 Crushing injury as dermed by (WHO ICD) €10,000
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45 Hernia €5,000
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46 Permanent total disablement from gainful employment of any and €100,000
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every kind
In respect of Benefits 1 to 46 the following conditions shall apply:(A)Any bodily injury sustained must comply with the definitions and classifications of those injuriesas defined in the World Health Organisation International Classification of Diseases (WHO ICD)Version 10.Each injury specified on cover will be defined as a recognised condition (as:’per WHO ICD 10)which can be verified by a medical practitioner.(B)Benefit shall not be payable in respect of anyone insured person under more than one of additionalbenefits 1 to 46 in connection with the same accident.Additional Benefit 1Dental expenses (vouched) Up to €7,500Payment for psychological trauma arising from the physical assault. €1,500Additional Benefit 2Burns or scalds to Face requiring hospitalisation €9,000Cover under the above terms is based on fixed benefits, with the exception of dental treatmentwhich will be covered on vouched expenses. The benefits will require medical confirmation of therelevant condition. Cover has been arranged by the HSE through Irish Public Bodies Mutual
Insurances Ltd.
Reporting of Incidents
All incidents are required to be reported through the appropriate channels within 48 hours of their occurrence.
Claims Procedure
The claims procedure for the scheme is consistent with that already in place for other types of insurance claims under HSE insurance policies.
The various stages of procedure in such eventuality are:
1 Claim notified by employee to HSE
2 HSE notify the Irish Public Bodies Mutual Insurances Ltd (IPB)
3 IPB issue claim form to HSE
4 Claim form completed by injured employee
5 Medical Certificate section of claim form completed by employee’s doctor
6 Completed claim form returned to HSE
7 HSE forward claim form to IPB
8 IPB validate claim and issue cheque
(B) Insurance Based Mechanism to address Significant Trauma Reads as Follows:
“The Government has conveyed approval to the HSE for the establishment of an Insurance Based Mechanism to address significant trauma for exceptional cases where a serious assault occurred on a nurse working in the mental health services and resulted in Post Traumatic Stress Disorder (PTSD). The Insurance Based Mechanism is attached.
The establishment of the Insurance Based Mechanism was included in proposals from the Labour Relations Commission on 14 May 2008 following discussions with the PNA / SIPTU involving the HSE and officials from the Department of Health and Children and Department of Finance. The Mechanism will provide a fixed quantum of compensation in respect of Post Traumatic Stress Disorder arising from trauma in exceptional cases and in line with conditions laid down”.
In summary, the Insurance Based Mechanism provides for an award of €15,000 in particular instances where a psychiatric nurse is:
• Threatened with
o Death
o Serious injury
o A viable weapon (including a syringe used as a weapon)
o Sexual assault
• Held hostage, attempted or completed kidnap, false imprisonment or prevented egress from a closed space of more than two hours duration.
• • Persistent and intrusive stalking over a prolonged period, verifiable threatening behaviour while off duty by a patient or former patient.
• • Strangulation
• • PTSD (as defined in the WHO International Classification of Diseases Version 10 (see Mechanism for details
A claim under the Insurance Based Mechanism will only be considered once the full terms of the Mechanism have been satisfied. The Insurance Based Mechanism is only to be used following an assault by a patient where no physical injury occurs, or where a physical injury occurs which has not led and will not lead to a claim under the Insurance Based Scheme, and which results in a recognised psychiatric condition (WHO ICD listings) which can be medically verified.
The Mechanism will deal with exceptional cases which are not covered by the Insurance Based Scheme as outlined in HSE HR Circular 04(A)/2008.
The Insurance Based Mechanism came into operation on 15 July 2008.
Reporting of Incidents
All incidents are required to be reported through the appropriate channels within 48 hours of their occurrence.
Claims Procedure for Both Schemes
The claims procedure for the scheme is consistent with that already in place for other types of insurance claims under HSE insurance policies.
A claim should be lodged by or on behalf of the claimant within six calendar months of the assault. The various stages of procedure in such eventuality are as follows:
1 Claim notified by employer to HSE
2 HSE notify Irish Public Bodies Mutual Insurance Ltd (IPB)
3 IPB issue claim form to HSE
4 Claim form completed by injured employee
5 Medical certification section of claim form completed by employee’s doctor
6 Completed claim form returned to HSE
7 HSE forward claim form to IPB
8 IPB validate claim and issue cheque
Arbitration Mechanism
A joint arbitration Mechanism will be put in place to deal with situations where disallowance of a claim is not accepted for both schemes.
Review
The operation of the Insurance Based Mechanism will be reviewed twelve months from date of commencement. At a meeting of the parallel process on the 15th May 2009 a number of aspects relating to the scheme were raised by the P.N.A.
(1) The protocol for making a claim
• Standardization of application form.
• Necessity to have a named HSE official with responsibility for processing claims.
H.S.E-EA will discuss this with the relevant section of the H.S.E and the intention is that both of these issues will be dealt with.
(2) Process for Dealing with Claims prior to the introduction of the Insurance Scheme
• Those who were informed after date of the Labour Court recommendation of 27/03/07 to the date of introduction of both schemes 16th May 08 and 15th July 08.
• The 40 (approx) cases that were lodged in the system at the time of the Labour Court Recommendation.
The H.S.E-EA is in discussions with the State Claims Agency regarding these issues.
(3) Appeals Process
• Agreement that a 3 person arbitration committee will be set up to comprise of an independent chair and a nominee from the unions and from management. The unions to submit nominations.