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South Western Sydney Local Health District enters enforceable undertaking for baby gassings

South Western Sydney Local Health District (SWSLHD) has been spared prosecution over two gassing incidents that left one newborn baby dead and another with permanent brain damage.

The tragic incidents occurred at Bankstown-Lidcombe Hospital in 2016, after the babies were mistakenly administered with nitrous oxide instead of oxygen, because the oxygen outlet had been incorrectly connected.

This error wasn’t discovered until after the second incident where the baby was fatally injured. The gas outlet was then tested a week later.

SWSLHD was initially charged by SafeWork NSW for breaching the Work Health and Safety Act 2011. The regulator has now dropped the charges in favour of an enforceable undertaking.

A SafeWork NSW spokesman said “it is in the public interest to enter an enforceable undertaking with SWSLHD as an alternative to prosecution”.

However, four other defendants, including an independent contractor and gas company BOC, are still facing criminal proceedings over the matter.

SafeWork NSW has published on its website that one of the reasons it has accepted the enforceable undertaking with SWSLHD is because “the alleged contravention does not appear to be a section 31 Reckless conduct category 1 offence, which if it was the case, would preclude the proposed undertaking from being accepted”.

It further states that “the nature of the alleged contravention and the actions taken by [SWSLHD] in response to the incident are assessed as being appropriate for consideration of an undertaking” and that “the strategies proposed in the undertaking have been assessed as likely to deliver long term sustainable safety improvements in the workplace, industry and community”.

“The undertaking addresses the requirements contained within the Enforceable Undertakings Guidelines,” it states.

The enforceable undertaking, which will cost SWSLHD $536,600 in total, will include:

  • roll out of an electronic contractor registration kiosk in acute facilities across SWSLHD;
  • implementation of a risk information system across all departments in SWSLHD and dissemination of learnings and experience to all NSW Health entities; and
  • health and literacy program for prominent culturally and linguistically diverse communities in the SWSLHD.
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