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  4. Sarvestani v State of Queensland (Metro South Hospital and Health Service) - [2017] QIRC 85

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Sarvestani v State of Queensland (Metro South Hospital and Health Service)[2017] QIRC 85

Sarvestani v State of Queensland (Metro South Hospital and Health Service)[2017] QIRC 85

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sarvestani v State of Queensland (Metro South Hospital and Health Service) [2017] QIRC 085

PARTIES:

Sarvestani, Farouk

(Applicant)

v

State of Queensland (Metro South Hospital and Health Service)

(Respondent)

CASE NO:

TD/2016/91

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

22 September 2017

HEARING DATES:

27, 28 and 29 July 2017

MEMBER:

Industrial Commissioner Thompson

ORDER:

The Application is dismissed

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment ‑ Dismissal ‑ Witness evidence ‑ Serious assault of a patient - Disciplinary process - Mitigation - Were the mitigating factors significant - Was the termination harsh - Termination not harsh, unjust or unreasonable - Application dismissed.

CASES:

Industrial Relations Act 1999, s 73

Public Service Act 2008, s 187, s 189

Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v The Public Transport Authority of Western Australia [2017] WAIRC 00066

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036

Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166

Byrne v Australian Airlines Limited [1995] HCA 24

Queensland Health v Robinson and Grimley [1999] QIC 16; 160 QGIG 194

APPEARANCES:

Mr J. Dwyer of Counsel, instructed by Clifford Gouldson Lawyers for the Applicant.

Mr A. Herbert of Counsel, instructed by McInnes Wilson Lawyers, for the Respondent.

Decision

Background

  1. [1]
    On 14 October 2016 Farouk Kamali Sarvestani (Sarvestani) lodged with the Industrial Registrar an application for reinstatement following the termination of his employment on 22 September 2016 by the State of Queensland (Metro South Hospital and Health Service)(Metro South).
  2. [2]
    The application amongst other things asserted that the termination was unjust, harsh and unreasonable within the meaning of s 73(1)(a) of the Industrial Relations Act 1999 (the Act) as it was disproportionate to his conduct at the time.
  3. [3]
    Metro South had in correspondence (dated 9 May 2016) under the signature of Robert Mackway-Jones, acting Chief Executive, advised Sarvestani that he was being suspended from duty pursuant to s 189(1) of the Public Service Act 2008 (the PS Act) on the basis he may be liable to discipline in respect of serious allegations concerning his professional conduct and behaviour on 8 May 2016 regarding a physical assault on a patient in the Intensive Care Unit (ICU) at the Princess Alexandra Hospital (PAH).
  4. [4]
    In further correspondence (undated) under the signature of Dr Stephen Ayre (Dr Ayre) received by Sarvestani on 25 May 2016 he was formally advised of the following allegations that had been levelled against him:

"Allegation 1 - You assaulted a patient, punching him on the left side of his face.

1.1 It is alleged at approximately 7.30 am on Sunday 8 May 2016 you were providing care to a patient in bed 25.  Registered Nurse Ms Amanda Danko was providing care to the patient nearby in bed 24.  You provided assistance to Ms Danko in the management of the patient in bed 24 as he had become agitated and attempted to remove his tracheostomy.  You physically intervened to prevent the patient removing his tracheostomy, holding down his left arm.  Ms Danko was simultaneous physically intervening to prevent the patient using his right arm to remove his tracheostomy.  You released the patients left arm and the patient struck you in the abdomen using his left hand.  You then punched the patient on the left side of his face using your right hand.

1.2 You raised your fist to punch the patient a second time.  Ms Danko physically intervened by putting herself between you and the patient pulling at your arm telling you that you were out of order and needed to step away.  Registered Nurse Mihkahlia Proffitt verbally managed to remove you from the bedspace by yelling at you to stop and back away from the patient."

  1. [5]
    Attached to the correspondence was the following documentation pertaining to the allegations:
  • Attachment A - ss 187 and 188 of the PS Act;
  • Attachment B - Code of Conduct for the Queensland Public Service;
  • Attachment C - Metro South Health Procedure WS.H.PR.1.0 - Discipline Action;
  • Attachment D - Witness Statement, Registered Nurse, Amanda Danko;
  • Attachment E - Witness Statement, Registered Nurse, Mihkahlia Proffitt;
  • Attachment F - Witness Statement, Nurse Unit Manager, Nicky West;
  • Attachment G - Witness Statement, Operational Services Support Officer, Michael Jason Tou;
  • Attachment H - Witness Statement, Deputy Director of Intensive Care and Senior Intensive Care Specialist, Peter Kruger; and
  • Attachment I - Patient Clinical Summary.
  1. [6]
    Sarvestani was afforded the opportunity to provide a written response to the allegations within fourteen calendar days.
  2. [7]
    The Queensland Nurses Union (QNU) on behalf of Sarvestani in correspondence (dated 9 June 2016) under the hand of Beth Mohle (Secretary) responded to the show cause letter, making the following observations:

"Mr Sarvestani stated he bent over due to the force of the punch and he had his breath taken away.  It was at this time, in shock and through an unintentional act on one occasion, that Mr Sarvestani struck the patient.  In his response, Mr Sarvestani has expressed his deep remorse for having reacted in that manner and has taken steps to ensure he would never behave in this way again.

Mr Sarvestani has in the past been subject to acts of violence by patients which required treatment in the PAH Emergency Department for injuries sustained, and as set out in his response, has never reacted in this manner.  The QNU submits that on this occasion, Mr Sarvestani transgressed from his usual exemplary conduct when assaulted by the patient."

  1. [8]
    The QNU submitted that Sarvestani was very remorseful, had acknowledged his actions and had initiated therapy to identify why he had reacted in the manner he did.  Additionally whilst he in no way condoned his reaction there were said to be mitigating circumstances in his personal life that could have contributed to his reaction upon being assaulted by the patient.
  2. [9]
    Extenuating circumstances warranted no further action being taken against Sarvestani however if there was to be some form of action it should be that he undertakes refresher training and/or education around the specific issues.
  3. [10]
    Sarvestani also provided a written response (undated) to the allegations in which he referenced the following issues in some detail:
  • events prior to the incident;
  • the incident;
  • events after the incident;
  • reflection; and
  • mitigating circumstances.
  1. [11]
    On 29 June 2016 Dr Ayre advised Sarvestani that having carefully considered all the information available to him including the response he found that Sarvestani was liable for disciplinary action pursuant to s 187(1)(b) of the PS Act in that:

"…you are guilty of misconduct in that your behaviour in an official capacity was inappropriate when, you assaulted a patient punching him on the left side of his face as outlined in allegation one."

  1. [12]
    Dr Ayre described the condition of the patient assaulted as being:
  • critically ill;
  • with life-threatening injuries; and
  • devices in place to sustain life.
  1. [13]
    The characteristics of the patient's condition were:
  • 63 year old male, weighing 170 kg and 180 cm tall;
  • intubated due to right lung collapse and chest trauma;
  • multiple rib fractures and small right pneumothorax;
  • respiratory acidosis related to severe pain and morbid obesity;
  • acute kidney injury;
  • hyperkalaemia;
  • febrile for many days; and
  • period of pain and discomfort.
  1. [14]
    The Chief Executive of Metro South also gave consideration to the following:
  • the seriousness of the substantiated allegation;
  • overall work record, including any previous disciplinary actions or warnings;
  • any explanation given by Sarvestani;
  • any extenuating circumstances which may have had a bearing on his actions or the incident;
  • the degree of risk to the health and safety of staff and clients;
  • the impact the substantiated allegation has on Sarvestani's ability to perform the duties of his position; and
  • the impact the substantiated allegation has on public and client confidence in Metro South.
  1. [15]
    The penalty being considered was the "termination of employment" with Sarvestani given seven calendar days to provide a response prior to the final determination.
  2. [16]
    On 11 July 2016 the QNU responded to the second show cause notice submitting that it would be harsh, unjust and unfair to terminate Sarvestani without considering alternate penalties that may include:
  • a reduction in classification and consequential change of duties;
  • transfer or redeployment to another unit; or
  • forfeiture or deferral of a remuneration increment increase.
  1. [17]
    Clifford Gouldson Lawyers in correspondence (dated 14 July 2016) on behalf of Sarvestani identified a number of areas of concern in relation to the investigation/management of the disciplinary process and cited issues that included:
  • exposure of Sarvestani to combative/agitated/aggressive patients without suitable training;
  • failure to provide a safe working environment;
  • failure to subject Amanda Danko (Danko) to the same disciplinary action or investigation despite her mismanagement of the patient; and
  • inaccurate and incorrect information in Danko's statement.
  1. [18]
    Sarvestani was seeking an opportunity to meet with senior management prior to the decision on his employment being made.
  2. [19]
    Dr Ayre responded to the lawyer's correspondence on 27 July 2016 in which he rejected the suggestion that Sarvestani had not been afforded natural justice and extended the date of his response to 2 August 2016.
  3. [20]
    Sarvestani's lawyers advised Lorna Hampson from Metro South on 19 August 2016 that Australian Health Practitioner Regulation Agency (AHPRA) had decided to continue his nursing registration with undertakings that would not restrict his return to an unsupervised registered nurse in the ICU at the PAH.
  4. [21]
    Dr Richard Ashby (Dr Ashby) the Health Services Chief Executive at Metro South informed Sarvestani in correspondence (dated 22 September 2016) that his employment was terminated with immediate effect for having "assaulted a critically ill, morbidly obese 63 year old bariatric patient, who had life threatening injuries and devices in place to sustain his life, and who at the time was confused and agitated while coming out of sedation".  The correspondence also noted the following:

"You have been afforded training in dealing with aggressive patients and guidelines are provided to all ICU staff on how to manage agitated patients."

Applicant

  1. [22]
    Evidence was called from four witnesses in the proceedings:
  • Sarvestani;
  • Mihkahlia Proffitt (Proffitt);
  • Dr Justine Evans (Dr Evans); and
  • Dr Gavan Palk (Dr Palk).

Sarvestani

  1. [23]
    Sarvestani commenced full-time employment at the PAH in October 2007 in the Orthopaedic Ward on a Graduate Program having previously participated in student placements at the PAH in 2005 and 2007.  He holds a Bachelor of Nursing and a practicing certificate with AHPRA to practice as a Registered Nurse (RN).  In October 2010 he transferred to the ICU where he remained for almost six years until the termination of his employment.
  2. [24]
    On 8 May 2016 he was working in the ICU and allocated the responsibility for the patient in bed 25.  At around 7.40 am as he was reviewing his patient's notes he observed the patient in bed number 24 becoming agitated and touching his tracheostomy tube in a manner that was causing his ventilator alarms to go off in the form of a warning.  A period of several minutes elapsed whereby Danko the nurse assigned responsibility for bed number 24 had taken no action which prompted him to approach the patient as he was attempting to de-cannulate himself by removing the tracheostomy tube out which would have presented a high risk of the patient dying.
  3. [25]
    On approaching the patient to make sure he did not remove the tracheostomy tube the patient was alleged to have mouthed the words "fuck off cunt" as he attempted to stop him removing the tube.  Despite efforts to calm the patient down his agitation seemed to increase with him making aggressive head gestures toward Sarvestani and mouthing words to the effect "You want to go cunt, I'll take you".  The patient took hold of his thumb, pulling it back and causing pain requiring him to reposition his hand on the patient's left wrist, holding his arm firmly against the bed.  Danko initially had witnessed the interaction making no attempt to assist despite the patient being assigned to her until she eventually attended to the right side of the bed to assist.
  4. [26]
    At some stage Danko said words to the effect "stop it, you're hurting me, stop it" and called upon registered nurse Proffitt to obtain soft restraints.  In an effort to further de‑escalate the situation Sarvestani released the patient's hand only to be struck with significant force in his solar plexus which winded and bent him over.  Without any thought, in an automatic response to being hit in the solar plexus he hit the patient on the left side of his face with his right fist, whilst also grabbing his left hand with his left hand.  Sarvestani then raised his right hand up in front of his face for protection.  Sarvestani recalled "zoning out" at the time of the incident, being frozen and unable to hear people who were talking and yelling.  He became confused, dazed and noticed Danko pulling at his shirt.  The patient remained aggressive and according to Sarvestani head butted Proffitt and attempted to bite her.
  5. [27]
    The incident was reported to clinical nurse Jang and nurse unit manager West (who was contacted at home) where he was informed that his actions were inappropriate.  He had the understanding that the patient had suffered "only minor soft tissue damage" from his actions and felt deeply sorry for his actions, having never previously engaged in similar conduct during his employment despite being confronted by numerous agitated and aggressive patients.
  6. [28]
    Sarvestani gave evidence around the disciplinary process undertaken by Metro South which commenced with the provision of a letter of suspension on 10 May 2016 and concluded with the termination of his employment on 22 September 2016.
  7. [29]
    In the course of his employment with Metro South he had been the subject of violence in the workplace on a number of occasions that included:
  • 19 September 2010 - seriously assaulted by a patient with hits to his face, neck and kneed in the testicles; and
  • 2014 - a patient bent his thumb back in a manner causing him pain.

In the period 1 July 2012 to 1 July 2015 according to Queensland Health figures the PAH had the highest number of assaults at any hospital.

  1. [30]
    On 9 April 2015 the Occupational Violence Risk Assessment Report 2015 (OVAR) identified aggressive incidents that had been reported in the previous three year period at the PAH ICU including:
  • 125 physical incidents;
  • 63 incidents reporting as "nil injury"; and
  • 11 verbal incidents.
  1. [31]
    The report went on to state:

"ABM training has been completed by 70% of staff within the unit.  The evidence indicates that there should be a strengthening of compliance in Occupational Violence Prevention and Awareness/de-escalation training".

  1. [32]
    The 2016 OVAR highlighted risk associated with the withdrawal of sedation:

"If patients 'wake badly' generally doctors are not there and do not think of chemical restraints as a rescue strategy.  Doctors do provide instructions on the patient file; however, on what to do in the instance a patient is agitated.  An additional issue currently being experienced by nursing staff is when medical staff instruct nursing staff to withdraw sedation at the same time as withdrawing pain relief.  This often leads to agitated patients."

  1. [33]
    Additionally the report identified risk associated with waking patients:

"Aggression appears to occur on wake up (intubated and ventilated) and with those who have a history of aggression and include aggression demonstrated by family/loved ones."

  1. [34]
    The Metro South Occupational Violence Management and Prevention Procedure was said to provide for employees to defend themselves in certain circumstances:

"Metro South Health employees have a lawful right to defend themselves or others using reasonable force."

  1. [35]
    The incident was reported to the Office of the Health Ombudsman which led to a request from AHPRA to provide a response to the allegations contained in the report to the Ombudsman.  AHPRA after considering the allegations determined that Sarvestani could continue to practice as a registered nurse with some restrictions, namely:

"a) consult with a supervisor, when necessary and otherwise at weekly intervals, about my performance and patient management.

i) Obtain written consent from the supervisor for APRHA [sic] to communicate with the supervisor about my mental health.

ii) The supervisor to provide 3 monthly reports to AHPRA.

b) provide AHPRA with the Contact Details of the Director of Nursing at each place of practice and written confirmation that they are aware that AHPRA will contact them for the purpose of providing reports regarding me.

c) continue to engage with my psychologist at a frequency determined by the psychologist, and obtain written confirmation that the psychologist is aware of the undertakings.

d) undertake and successfully complete a management of a violent patient program."

  1. [36]
    In the lead up to the incident of 8 May 2016 there were a number of significant factors in Sarvestani's personal life which were causing him personal stress and may have contributed to his unusual reaction on being hit by the patient.  The matters (of which Metro South were aware) included:
  • 29 February 2016 - separated from his wife;
  • difficult divorce proceeding and stressful child custody proceedings;
  • wife made allegations of domestic violence - consented to being bound by Domestic Violence Order - no admission and no finding of the court;
  • day of incident was daughter's birthday and he was denied access on the day; and
  • child custody hearing had been set down for 10 May 2016.

Sarvestani had sought medical treatment from a doctor and had referred to a psychologist with the first appointment due on 11 May 2016.

  1. [37]
    An explanation for his conduct, which was said to be out of character was, due to fatigue, anxiety and stress in his life at the time.  Should he not be reinstated to a position with Queensland Health he would be prohibited from practicing the type of nursing he was trained for as the demographic and activity of patients at private hospitals is substantially different.
  2. [38]
    In terms of mitigating his loss he provided material (in affidavit form) of a range of applications he had completed and responses received in an unsuccessful pursuit of obtaining employment in the health arena.
  3. [39]
    In an affidavit in response [Exhibit 3] he did recall telling registered nurse Michael Sullivan after the incident on 8 May 2016 to tell Danko not to give the patient Heparin for reasons relating to the patient's health.
  4. [40]
    Under cross-examination Sarvestani was of the view that the patient's medication (on the SPICE trial) was not being appropriately administered by the medical specialist putting the nurses at risk [Transcript p. 1-21].  He conceded that a number of factors beyond the medication could have attributed to the patient being more agitated than he should have been [Transcript p. 1-21].  The condition of the patient at the time of the incident was that of an agitated and aggressive state [Transcript p. 1-24].  Sarvestani denied he was trying to find fault with other people in the work environment stating:

"What I did was inexcusable.  What I did was totally wrong.  From what I - how this all happened, I wish to God I could undo it all" [Transcript p. 1-25].

He refused to accept that the patient's condition rendered him unable to lift his head off the pillow [Transcript p. 1-26].  On the position of Danko ignoring her patient he conceded that if Danko and Proffitt had a different version, then it was possible he was incorrect [Transcript p. 1-27].  He disagreed with the proposition that he had concocted a version of events around the incident that was completely untrue [Transcript p. 1-28] however accepting that his recollection could be wrong [Transcript p. 1-29].  His recall was that Danko did not turn around for two minutes, Proffitt was busy with her agitated patient and he was doing someone else's job [Transcript p. 1-28].

  1. [41]
    Sarvestani upon hearing Danko say words to the effect "you're hurting me, stop it" did not accept this was a strategy to change the patient's focus [Transcript p. 1-29].  He identified the patient moving his head in an aggressive way and mouthing the words "you want a go" [Transcript p. 1-32].  The body language and gesturing of the patient was being undertaken to taunt Sarvestani [Transcript p. 1-33].  At a stage the patient formed his left hand into a fist and hit Sarvestani "smack bang in the middle of his chest" [Transcript p. 1-37].  He admitted saying to another staff person (after the incident) words to the effect "he hit you, you hit him.  Blokes sort things out that way" [Transcript p. 1-37].
  2. [42]
    After being assaulted Sarvestani formed a fist on his right hand located the patient's head and hit him in the middle of the side of the head.  He gave no thought about where he would hit him, it just happened to be his head, on the cheekbone [Transcript p. 1-39].  Sarvestani was in "autopilot" at the time and he did not stop to think about his actions [Transcript p. 1-9].  He denied he raised his fist a second time for the purposes of a second punch but had done so to "block his face" [Transcript p. 1-40].  It was acknowledged that his actions in no way served the best interests of the patient [Transcript p. 1-42].
  3. [43]
    This was the only such incident in his life despite having previously been assaulted many times at school, university and the workplace [Transcript p. 1-43].  His reaction upon being hit was to punch back, contrary to every piece of training he had received [Transcript p. 1-45].  Sarvestani was taken to a report he had completed on 8 May 2016 where he had stated:

"My immediate and unpremeditated reaction was strike the patient once only on the left side of the face with my right hand…My response was totally a knee jerk reaction to being punched myself and was a fight/flight response."

He acknowledged that his reaction was to fight rather than flee and it was his duty, obligation and training to step back from that situation, not to go forward.  His reaction was a total contradiction of everything he had been trained to do in such circumstances [Transcript p. 1-47].  Further on in the report he had made the following observations:

  • "The patient is not confused or delirious and was not sedated";
  • "The patient was aware of his action and aware of the fact that he is in hospital"; and
  • "The patient's actions were calculated and premeditated."

Salvestani's evidence was at the time he wrote the report he was of that view but in terms of his evidence at the hearing, it "has pretty much concluded that the man was, in fact, confused and delirious…" [Transcript p. 1-50].

  1. [44]
    According to his evidence Danko, Proffitt and himself were in the circumstances, victims and that such a situation could not happen again [Transcript p. 1-50].  At the time of the incident he had consented to be bound by a Domestic Violence Order (DVO) which he had not contested because of time, money and the battle to gain custody of his daughter [Transcript p. 1-52].  Sarvestani agreed he had attempted to stop the patient being administered Heparin after the incident but had done so for reasons related to the patient's wellbeing.  It was acknowledged that given the patient was on Heparin the punching had the potential to be a fatal injury [Transcript p. 1-55].  It had been impossible to obtain a nursing job for reasons that included:
  • having been terminated;
  • not able to get referees from his previous job; and
  • AHPRA requirements [Transcript p. 1-58].

Most prospective employers would look at his situation and go "Too hard.  Not dealing with it" [Transcript p. 1-57].

  1. [45]
    In re-examination Sarvestani could not recall in his nursing experience the technique relied upon by Danko to calm the patient being used to attract the attention of the patient.  He accepted his view of the incident contained in a report contemporaneous to the incident that the patient was of sound mind had changed over the course of time.  At the time of the incident he was suffering from a mental health condition which had not been diagnosed.

Proffitt

  1. [46]
    The attendance of Proffitt was by way of an attendance notice without a formal statement being previously lodged.
  2. [47]
    Proffitt a registered nurse in the ICU since 2008 gave evidence-in-chief that consisted of statements given following the incident of 8 May 2016.  In the first statement her evidence went to being assigned bed 26 in the ICU on the day in question and having heard Danko call out "stop you're hurting me" to a patient in bed 24 and Sarvestani leaving his patient to assist Danko.  She then witnessed Sarvestani's arm raised above his shoulder with his fist clenched and Danko saying "stop Farouk".  The patient in bed 24 was punching out at all three of them and she yelled at Sarvestani to back away from the patient as he looked angry and had his fist raised as if he was going to hit the patient.
  3. [48]
    The patient was finally restrained with the assistance of two wardspersons and by this time Sarvestani had stepped away and was pacing in the corridor.  At this time she noticed the patient had a red area on his cheekbone and his eye seemed to be swelling.  She was later informed by Danko that the patient had punched Sarvestani in the solar plexus who in turn had hit him in the face on his left cheek.
  4. [49]
    In her second statement [Exhibit 8] dated 20 December 2016 it was said that the purpose of this statement was to clarify her earlier statement of 12 May 2016.
  5. [50]
    In this statement she recalled that on her way over to bed 24 she saw Sarvestani "double over and groan in pain" and then raise his arm in a fist at about the level of his chin, at which time Danko said "stop Farouk".  The evidence remained the same in respect of the patient being aggressive and the wardspersons assisting with his restraint.  Proffitt forcefully asked the doctor for something to settle the patient in bed 24 who had been mouthing he was going to kill them.  Danko who was visibly upset told her she had seen Sarvestani hit the patient on the left cheek after having been punched in the solar plexus.  Later that morning Sarvestani told her he had hit the patient in bed 24 and was completely stunned by his behaviour.
  6. [51]
    Proffitt had worked with Sarvestani for five years and had never previously seen him exhibit aggressive behaviour prior to this incident.  Such behaviour was totally out of character.
  7. [52]
    Under cross-examination the evidence was she decided to assist with a patient in bed 24 after having noticed Danko and Sarvestani having issues with the patient [Transcript p. 1-65].  She did not witness the patient being struck but saw Sarvestani's lift his arm near his ear with a clenched fist and heard Danko say "Stop Farouk" [Transcript p. 1‑66].  The patient at this time was "punching out" at all three of the nurses and she had noticed Sarvestani doubled over in pain with an expression of anger on his face [Transcript p. 1‑67].

Dr Evans

  1. [53]
    Dr Evans a clinical psychologist in material tendered in the proceedings advised that she had seen Sarvestani for eight sessions of psychological treatment after he had been referred to the clinic on 19 April 2016 for assessment and treatment of an adjustment disorder with mixed anxiety and depression.
  2. [54]
    Dr Evans had first seen Sarvestani on 11 May 2016 and continued to see him monthly although initially the consultations were fortnightly with his depressive symptoms having improved over the last six to seven months.
  3. [55]
    On presentation he was experiencing moderate symptoms of depression and stress, had difficulty winding down, ruminative worries, nervousness and feeling unsure about the future.  The symptoms had developed in the context of the breakdown of his martial relationship which had been the subject of long-term conflict.
  4. [56]
    There was a report of a recent incident in his workplace where he had been physically assaulted by a patient and had responded by hitting the patient.  He was suspended with full pay pending an investigation with the matter reported to AHPRA.  He was angry with himself for the behaviour and had no previous complaints or incidents at work.  The impact of the uncertainty surrounding his registration and continuing employment had contributed towards maintenance of moderate depressive symptoms.  Sarvestani had engaged well with treatment and had been insightful around recognising unhelpful thinking patterns that generate low mood and feelings of frustration and anger.
  5. [57]
    Dr Evans in terms of the future risk level of violent conduct by Sarvestani, gave evidence that with no past history of violent conduct in his adult life the incident on 8 May 2016 was a one off incident that occurred in the context of significant stresses in his life.
  6. [58]
    Under cross-examination it was confirmed that Sarvestani had reported being bullied and violence directed toward him in his school years [Transcript p. 1-78].  In the years he had worked in the ICU there had been physical violence directed toward him to which he had not responded [Transcript p. 1-79].  After 15 sessions she felt Sarvestani had been "pretty upfront" around things that had happened [Transcript p. 1-80].  Her assessment of violence risk going forward had been made on what had been said in their sessions [Transcript p. 1-82].

Dr Palk

  1. [59]
    Dr Palk a Consultant Psychologist undertook a clinical interview with Sarvestani on 4 February 2017 and subsequently spoke to him three times by phone regarding clarification of information obtained during the clinical interview.  The report was provided to lawyers acting for Sarvestani on 12 February 2017.
  2. [60]
    The referral had requested an expert opinion with regards to the following matters:
  • In your opinion was Sarvestani's reaction to being struck by a patient an automatic response (fight or flight) or premeditated?
  • Given the stressors outlined about which Sarvestani was experiencing at the time of the incident, would these in your opinion, have had an impact on his response to being struck?
  • In your opinion, does a person who is suffering from significant stress, act in ways contrary to their normal patterns of behaviour and conduct?
  • Given the steps taken by Sarvestani to not only reduce his personal stress, but also to develop some coping mechanisms to manage his personal stressors, and his participation in an aggressive behaviour course, in your opinion, it is likely that Sarvestani will act in such a manner in the future?
  • In your opinion, what risk does Sarvestani pose should he return to the workplace?
  • Are there any conditions which you believe should be placed on Sarvestani returning to the workplace?
  1. [61]
    The report contained references to the following material:
  • sources of information;
  • circumstances surrounding assault of a patient on 8 May 2016;
  • Sarvestani's background; and
  • Sarvestani's health.
  1. [62]
    A psychometric assessment of Sarvestani was undertaken from which his responses suggested an acknowledgement of important problems and the perception of a need for help in dealing with those problems.  Sarvestani reported a positive attitude towards the possibility of personal change, value of therapy and the importance of personal responsibility.  Also reported by him were a number of strengths that were positive indicators for a relatively smooth treatment process and reasonably good prognosis.
  2. [63]
    An appraisal of Sarvestani was performed under the Violence Risk Appraisal Guide (VRAG) which is a rating scale validated to predict an individual's probability of violent recidivism and considers aspects of an individual's social and criminal history and any personality disorder that meets the DSM-5.  Sarvestani's scale indicated he had a 0.00 and 0.08 probability of violent and general recidivism within the next seven to ten years.
  3. [64]
    A further tool being the Historical, Clinical and Risk Management Violence Assessment Scheme (the HCR-20) which is considered more reliable than the VRAG identified Sarvestani's risk of committing future acts of violence in the very low range having regard to the historical, clinical and risk management items in the HCR-20.
  4. [65]
    The opinions and conclusions in respect of the questions put to Dr Palk in the referral identified the following:
  • In your opinion was Sarvestani's reaction to being struck by a patient an automatic response (fight or flight) or premeditated?
  • Sarvestani reacted automatically in punching the patient after being punched by the patient;
  • there was no forensic evidence that he intended to harm the patient;
  • he appeared to become dazed after being punched and disassociated with his surroundings; and
  • he was remorseful over what had happened.
  • Given the stressors outlined about which Sarvestani was experiencing at the time of the incident, would these in your opinion, have had an impact on his response to being struck?
  • it would seem that at the time of the assault he was suffering significant stressors and suffering severe adjustment difficulties associated with his marriage and court proceedings;
  • he had experienced suicidal ideation and symptoms of anxiety and depression as a result of his marriage breakdown; and
  • the stressors he was experiencing at the time of the assault would have reduced his normal resilience to cope and manage difficult or aggressive patients.
  • In your opinion, does a person who is suffering from significant stress, act in ways contrary to their normal patterns of behaviour and conduct?
  • Sarvestani is by nature a warm and caring person and the assault on the patient was out of character and given his improved coping mechanism is extremely unlikely to act in an assaultive manner again.
  • Given the steps taken by Sarvestani to not only reduce his personal stress, but also to develop some coping mechanisms to manage his personal stressors, and his participation in an aggressive behaviour course, in your opinion, it is likely that Sarvestani will act in such a manner in the future?
  • Sarvestani since the assault incident has been receiving psychological intervention and participated in an aggressive behaviour course to build skills to manage aggressive situations; and
  • the assault was out of character and he has since improved his coping mechanisms with it being extremely unlikely he would act in an aggressive manner again.
  • In your opinion, what risk does Sarvestani pose should he return to the workplace?
  • the clinical, historical and psychometric evidence including that of VRAG and HCR-20 indicates he poses a low risk of being violent in the future.
  • Are there any conditions which you believe should be placed on Sarvestani returning to the workplace?
  • as a consequence of the treatment in which he has engaged and his improved coping skills he does not require formal conditions although would benefit from continuing treatment from his psychologist until his medical practitioners determine otherwise.
  1. [66]
    In conclusion Dr Palk went on to state:

"By nature Mr Sarvestanio [sic] is generally a gentle and passive person who avoids confrontation.  He has no history of previous assaults of any kind.  The psychometric and clinical evidence suggests at the time of the assault he was suffering an adjustment disorder and experiencing severe stress due to the breakdown of his marriage and custody dispute issues.  The overall evidence suggests Mr Sarvestano [sic] is a very low risk for committing future assault incidents.  The stressors in his life have resided due to amicable mediation and settlement of family property and custody matters.  Additionally he has sought and continues to participate in psychological intervention to assist him to cope with stress.  He has also developed improved strategies to cope with stress and manage aggressive patients."

  1. [67]
    In relation to comments made by Professor Harvey Whiteford (Professor Whiteford) that he placed less significance on those that self-report and who can be influenced by the desire to convey a certain impression, Dr Palk's evidence was that the Personality Assessment Interview - Inventory does actually assess for inflation, distorted, exaggeration, malingering or minimisation with Sarvestani's score within the scale of normal range.  In addition he had access to a lot of documentation in regards to witness accounts.
  2. [68]
    Under cross-examination Dr Palk indicated that just a clinical assessment on its own had an accuracy of outcome at about 33 per cent and it had been established by research that if psychologists or psychiatrists who rely on interviewing a client, demeanour or their historical account are no better than chance, in fact you might as well throw up a coin in coming up with a conclusion for risk [Transcript p. 2-5].  When undertaking a clinical assessment he indicated there was reliance on the patient's perceptions of how they see themselves and you do not often have an independent person to confirm their views [Transcript p. 2-6].
  3. [69]
    In terms of the referral it was the case that Sarvestani was absolutely aware that it was about his state of mind at the time of the assault and his future risk of committing further similar assaults [Transcript p. 2-7].  The reference by Danko of having observed Sarvestani having an angry look must according to Dr Palk be regarded as subjective having regard to all the circumstances of the incident and that you cannot rely upon demeanour or looks alone when you are looking at a person [Transcript p. 2-7].  It was unlikely based upon Sarvestani's history that he would form an intention deliberately to punch out a patient [Transcript p. 2-9].  On the issue of Sarvestani having raised his hand again it would only be speculation on whether it was defensive or otherwise [Transcript p. 2-9].
  4. [70]
    There was no question that Sarvestani had suffered impaired impulse and struck out on the day however there was nothing in his history to indicate he had done anything like that in his life [Transcript p. 2-10].  A logical conclusion was that he had acted inappropriately in the context of stressors happening in his life [Transcript p. 2-11].  On the analysis of fight or flight by Professor Whiteford as a physiological response, Dr Palk agreed with the analysis.
  5. [71]
    In re-examination Dr Palk did not believe that comments made by Sarvestani a couple of days after the incident in the form of "he hit me, I hit him" carried a lot of weight into whether he would act in a similar way in the future.

Respondent

  1. [72]
    Evidence was called from six witnesses in the proceedings:
  • Dr Peter Kruger (Dr Kruger);
  • Lynne Morris (Morris);
  • Dr Ayre;
  • Danko;
  • Professor Whiteford; and
  • Dr Ashby.

Dr Kruger

  1. [73]
    Dr Kruger a Senior Intensive Care Specialist with over 20 years' experience currently holds the position of Deputy Director of Intensive Care at the PAH having been appointed in March 2008.
  2. [74]
    In his role he had access to the medical records of the patient involved in the incident on 8 May 2016 and gave the following evidence in respect of the patient:
  • attended Ipswich Hospital Emergency Department on 27 April 2016;
  • transferred to PAH on 27 April 2017;
  • hospital stay 27 April 2016 to 16 June 2016 - total 51 days;
  • patient was 63 years of age and approximately 170 kilograms;
  • required home oxygen of 1.5 litres to 3 litres per day which reflected he had a chronic respiratory disease;
  • due to severity of chest trauma he was assessed as requiring tertiary level care and booked for an urgent transfer from Ipswich to PAH at 16.50 on 27 April 2016;
  • patient was suffering multiple injuries including severe chest trauma with multiple rib fractures.  The injuries resulted in the patient suffering:
  • -respiratory acidosis;
  • -acute kidney injury;
  • -hyperkalaemia; and
  • patient remained in ICU for 37 days before transfer to the Respiratory High Dependency Unit.
  1. [75]
    On 29 April 2016 the patient was placed on mechanical ventilation, commonly referred to as "life support" as he was unable to sustain breathing on his own and remained on such support for approximately 30 days.
  2. [76]
    Patients admitted to the ICU are commonly sedated which at times has the effect of causing delirium which can manifest itself through patient agitation that can require the use of soft restraints or further sedatives in order to stop them injuring themselves.  This can lead to a vicious cycle of patients becoming delirious resulting in further delirium.  Such patients can become difficult within ICUs and are managed in multiple different ways by different clinicians which may involve the use of a selection of potential medications including those in the SPICE Trial regime.  Based on his experience working in the ICU at PAH he estimated that at any one time at least one patient would be presenting (or have presented) with agitation associated with the use of sedative medication.
  3. [77]
    Dr Kruger gave evidence around the level of sedation administered to the patient in the 72 hours prior to the incident of 8 May 2016 believing that it was very likely the patient had the capacity to understand his actions or to be able to recall the incident.  The records show that the only time the patient was in any way agitated prior to the incident of 8 May 2016 was at 10.00 pm on 7 May 2016 where he was presenting with frequent non-purposeful movement or patient-ventilator dyssynchrony.  There is no record of the patient being aggressive towards PAH staff other than 8 May 2016.
  4. [78]
    On being informed with regards to the lead up to the incident on 8 May 2016 and that the patient would not have been agitated or alternatively acted in the manner he did if Dexmedetomidine and Fentanyl had not been preferred to other sedative medications, Dr Kruger did not accept this was the reason he became agitated or delirious.  In the PRIME Report (completed after the incident) the Nurse in charge had stated:

"The patient is extremely obese, strong, difficult to manage and prevention of harm to both patients and staff is essential to prevent such incidents from reoccurring over and over again by proactively providing appropriate medication."

  1. [79]
    Dr Kruger whilst accepting the patient may have been strong and difficult to manage at that point in time he did not agree the patient was being provided with inappropriate medication.
  2. [80]
    Post the incident of 8 May 2016 he was informed that Sarvestani had punched the patient at which time he ensured the patient was safe, noting the infusion of Dexmedetomidine was increased by 0.6 micrograms/kilogram/hour at 8.00 am on that day.  He reviewed the patient at 10.40 hours noting the patient was febrile, recording a temperature of 39.1 degrees but showed no facial asymmetry or obvious bruising or tenderness of his left check.  Upon his request CT scans of the patient's head, chest and facial bones were ordered with the scans confirming no evidence of fracture to the cheekbone.
  3. [81]
    The patient's family were informed of the incident without any mention of potential disciplinary action being taken in regards to Sarvestani.
  4. [82]
    Under cross-examination Dr Kruger confirmed that staff in ICU would manage various levels of aggression and agitation from patients coming out of sedation on a regular basis.  Patients may at times disregard pain and simply lash out with their delirium [Transcript p. 1-89].  Dr Kruger based on his knowledge of the patient believed it would not be implausible or inconsistent with his condition that he might have been able to hit someone with force albeit unintentionally [Transcript p. 1-91].  Upon informing the patient's family of the incident they were surprised and worried about him hurting himself [Transcript p. 1-91].

Morris

  1. [83]
    Morris an acting Nurse Unit Manager with Metro South since 2011 having commenced work in the ICU at the PAH in 2004 gave evidence with regards:
  • working conditions in the ICU
  • -30 beds - 26 to 28 usually occupied at any one time;
  • -patient to nurse ratio 1:1;
  • -nurses generally work 12 hour rotating shifts with approximately 240 nurses working across these shifts;
  • occupational violence in the ICU
  • -occupational violence (physical and verbal assaults) is an issue;
  • -OVRA Reports 2015/16 identify aggressive incidents;
  • -PAH had taken a number of steps to ensure the safety of staff in the ICU that include:
  • -provision of portable duress alarms;
  • -fixed duress alarms next to every bed;
  • -access to security staff for difficult or aggressive patients;
  • -verbal handovers used to identify difficult or aggressive patients;
  • -use (where appropriate) of physical and chemical restraints;
  • -implementation of relevant occupational violence management and agitation procedures.
  1. [84]
    Intensive care is for patients who are critically ill and require a constant level of one‑on‑one care from nursing staff and it is widely recognised that these patients are at significant risk of unintentional harm if they wake badly.  Although rare, patients who are suffering delirium and/or agitation can lash out whilst hospital staff members are trying to render medical assistance.  Whilst occupational violence in the ICU is an issue the ICU is one of the most controlled environments in the hospital in regards to staff safety and occupational violence.
  2. [85]
    Morris had worked with Sarvestani since 2010 and in the lead up to the 8 May 2016 incident had three conversations with him about the breakdown of his marriage:
  • 18 March 2016 - advised he had formally separated from his wife (also a PAH employee);
  • had ongoing concerns for the well-being of his daughter.  Morris recommended that he seek counselling from the Employee Assistance Service;
  • 31 March 2016 - telephone conversation unable to come to work as his wife had taken out a Domestic Violence Order against him and the police required him to surrender 27 firearms;
  • 6 May 2016 - he was residing with his brother and had booked to see a psychologist.
  1. [86]
    Whilst she had concerns for Sarvestani's mental health and wellbeing prior to the incident of 8 May 2016 she did not believe he was unfit for duties or that his marital issues were negatively affecting the level of care he was providing to patients.  She did not foresee the incident of 8 May 2016 because in her time as a nurse she had never seen or heard of a nurse punching or otherwise attacking a patient by way of a physical assault.
  2. [87]
    On 8 May 2016 she was not on shift and was informed of the incident by way of telephone calls from the nurse unit manager (on the day) and the nurse in charge of ICU.  Based upon her experience as a nurse unit manager working in ICU the only issue in respect of Sarvestani's conduct in dealing with the patient was that he elected to let go of the patient's hand in circumstances where soft restraints had been retrieved which she described as "unusual".
  3. [88]
    Morris could not see how any form of additional training could have assisted Sarvestani to manage the situation better and to her knowledge there was no training course that taught or trained staff not to strike, attack or retaliate against agitated, sedated and immobile patients.
  4. [89]
    Morris was not involved in the disciplinary process to terminate Sarvestani's employment with her role limited to acting as a support person for Danko and Proffitt and being present when he was handed his stand-down notice.
  5. [90]
    Under cross-examination Morris' evidence was that nurses would deal with patient agitation when coming out of sedation on a weekly basis [Transcript p. 1-93].  It would be unusual for a person with six broken ribs to swing an arm with some force and connect someone [Transcript p. 1-94].  Morris was aware of assertions regarding the patient's conduct stating it would not be the first time this "sort of thing" had happened [Transcript p. 1‑95].

Dr Ayre

  1. [91]
    Dr Ayre the Executive Director of the PAH and QEII Health Network had the delegated authority for the Health Service Chief Executive to commence and undertake disciplinary procedures and to impose disciplinary penalties other than termination.
  2. [92]
    He became aware of the incident on 8 May 2016 involving Sarvestani and of his admission he had punched a mechanically ventilated ICU patient in the face.  Due to the serious nature of the incident a triage meeting involving a number of senior PAH management employees was held on 9 May 2016 to determine how to appropriately respond and manage the incident.
  3. [93]
    On 9 May 2016 Sarvestani was formally advised he was to be stood down pending an investigation of the incident and on 23 May 2016 Dr Ayres signed correspondence to Sarvestani that advised him of the allegations against him and that pursuant to the PS Act that he may be liable for disciplinary action.
  4. [94]
    The QNU on behalf of Sarvestani provided a response on 9 June 2016 in which he admitted punching a critically ill patient however he sought to dispute the factual recollections of Danko and Proffitt and relied upon a number of mitigating factors to be taken into consideration.
  5. [95]
    Upon taking into consideration the response including the admission, factual disputes and alleged mitigating circumstances it was considered disciplinary action was warranted pursuant to s 187(1)(b) of the PS Act and accordingly Sarvestani was advised that he had engaged in misconduct and he was liable for disciplinary action pursuant to s 187(1)(b) of the Act.  Further correspondence was received from the QNU and Sarvestani's legal representatives which raised additional information which resulted in Dr Ayres agreeing to Sarvestani having a further and final opportunity to enter any other response he considered relevant.
  6. [96]
    After considering all the material including the additional responses Dr Ayres determined the matter be escalated to Dr Ashby as he did not consider a penalty less than termination was necessarily appropriate or proportionate in the circumstances.  Issues considered included:
  • personal circumstances, including the breakdown of his marriage;
  • the effect termination would have on him;
  • that he had not acted violently in the workplace before; and
  • the contention that his actions occurred "without pause or thought", as a reaction to being struck in the solar plexus.
  1. [97]
    The issues relied upon by Sarvestani were not considered to either justify or provide sufficient mitigation of, the undisputed facts particularly in the case of vulnerable patients at a hospital who were mechanically ventilated, sedated and bed bound with no means of protecting themselves.  Given the submissions that Sarvestani had acted "without pause or thought" (which Dr Ayres did not accept as true) he considered he could have no absolute confidence that Sarvestani could safely continue to practice in any patient facing role at the PAH for numerous reasons.
  2. [98]
    Under cross-examination his evidence was that he did not accept Sarvestani's actions as being automatic or an impaired impulse control and whilst he would defer to the opinion of psychiatrist he did not accept that Sarvestani's action in this case because he had  a period of time when he was doubled over until he took action [Transcript p. 2-18].  If it was accepted by the Commission that there had been an impaired impulse control response it was conceded that the severity of his conduct would be reduced [Transcript p. 2-19].  Dr Ayres had an understanding of the stress that was being experienced by Sarvestani at the time of the incident and conceded it was "probably at the high end of the spectrum of personal stress" [Transcript p. 2-20]. 
  3. [99]
    In re-examination Dr Ayres said there was no difference in punching a patient on impulse or with intent.  It was inconsistent for a practising clinician to accept assaulting an agitated or difficult patient would be acceptable in any way.

Danko

  1. [100]
    Danko had been a registered nurse with Metro South in the ICU at the PAH since December 2008.  On 8 May 2016 she was rostered to work a 12 hour shift in the ICU and had been appointed to care for the patient in bed 24.  Upon the handover at the commencement of the shift she noted her patient was a morbidly obese 63 year old male who was very seriously injured from an accident and mechanically ventilated (life support).
  2. [101]
    The patient had issues due to his size which caused problems with the bed being undersized and due to his injuries he had a continuous infusion of sedative medication.  At the commencement of the shift the patient had to be cleaned up and she recalled the handover nurse advising to be mindful around the patient as he had tried to spit at her twice over the course of the shift.
  3. [102]
    At around 8.00 am on 8 May 2016 the patient became verbally aggressive mouthing words to the effect:
  • "had enough";
  • "wanted to go home"; and
  • "leave him alone".

As she attempted to help the patient he mouthed the words "I'll kill you".  She was not fearful of the patient, distressed or surprised by the situation because patients in the ICU when coming out of sedation often said things which did not make sense or were not meant.  The patient was attempting to remove his tracheotomy tube and on this occasion the patient's agitation could not be appeased, leading her to hold the patient's right hand with both her hands in an attempt to restrain him from removing the tube.  At this stage the patient began to squeeze her hands and she recalled saying "you're hurting me" on a number of occasions in an attempt to get him to snap out of it.  If necessary she could have easily broken the patient's grip.

  1. [103]
    At this time Sarvestani who was at bed 25 approached the patient's right side and took hold of his left wrist.  Danko had requested Proffitt to get a set of hand restraints whilst she continued to manage the patient's right hand.  The patient broke free with his hands flailing outwards to the left and the right at the same time.  Whilst she was not hit she witnessed the patient's left hand connect with Sarvestani's abdomen with some force which may have winded him.  Danko did not believe the patient had intentionally tried to strike them however having hit Sarvestani with the back of his hand she noticed Sarvestani's face changed from pain to one of anger at which time he hit the patient with a lifted right hand and a clenched fist in the face.  He then raised his fist a second time at which time Danko screamed that he was "out of order" and needed to "move away from the patient".  Her assessment at that point was Sarvestani presented a greater risk to the patient prompting her to physically move and restrain Sarvestani by pulling at his bicep and shirt with her full strength.  Proffitt who had returned verbally assisted her in removing him from the patient's bed space.
  2. [104]
    Based on her observations the patient's mobility was so limited he could not reposition himself in the bed and was extremely confused and did not know what he was doing.  She had not felt threatened at any time during the incident and his behaviour at the time was not uncommon with ICU patients which doctors and nurses were required to manage.
  3. [105]
    Danko denied a number of allegations made by Sarvestani that included:
  • Sarvestani was the first to attend the patient as he was at her workstation with her back to the patient;
  • she had not seen the patient mouth words to the effect of:
  • -"Fuck off cunt";
  • -"You want a go cunt, I'll take you"; and
  • never saw the patient make any gestures that he wanted to fight them.
  1. [106]
    Immediately following the incident the patient stopped struggling and appeared in shock and she recalled the doctor prescribing medication to calm him down.  She remained with the patient offering as much reassurance as possible, however he did continue to mouth "go away" and "I want to go home".
  2. [107]
    Sarvestani after having eventually removed himself from the area rang Danko and told her not to give Heparin to the patient.  This request was viewed as unusual as the patient was not under his control and a nurse would only withhold the administration of a prescribed drug with a very good reason which would require a doctor to make the ultimate decision.
  3. [108]
    Under cross-examination it was accepted that her use of the words "you're hurting me" when the patient was squeezing her hand had raised the attention of Proffitt and Sarvestani [Transcript p. 2-24].  Danko had clearly understood the patient had mouthed the words "I'll kill you" but she did not accept the patient had been physically aggressive [Transcript pp. 2-25 and 2-26].  Patients in ICU react to the process of coming out of sedation in a verbal and aggressive way [Transcript p. 2-26].  The patient had become difficult to manage and Sarvestani in coming to assist was initially appropriate as was the assistance from Proffitt, although she provided no bedside assistance [Transcript p. 2-28].  In a statement given on 13 May 2016 she had described the patient as continuing to be abusive after the incident [Transcript p. 2-29].  Danko refused to accept she had given a different description of what had occurred on 8 May 2016 [Transcript p. 2-30].
  4. [109]
    Danko accepted it was possible the patient was mouthing to Sarvestani and she had not been in a position to see it [Transcript p. 2-31].  She was unable to recall the period of time from the patient striking Sarvestani in the solar plexus and him punching the patient but agreed it happened in a matter of seconds [Transcript p. 2-31].  Danko refused to accept that she had provided different versions of the incident in various statements she had made at different times [Transcript p. 2-32].  An example was now "flailing" as opposed to "hitting out hard" which Danko acknowledged were different but did not mean it to be [Transcript p. 2-33].  Danko denied that her evidence was untruthful as a response to Sarvestani's comments on her delay coming to the patient's bedside [Transcript p. 2-33].
  5. [110]
    In re-examination the evidence was that the used of the words "you're hurting me" was just a tactic she used when dealing with agitated or aggressive patients.  Danko estimated she had to move five or six metres to grab Sarvestani's arm.

Professor Whiteford

  1. [111]
    Professor Whiteford a consultant psychiatrist had been instructed by Metro South's legal representatives to review and consider the report prepared by Dr Palk in regards to Sarvestani.
  2. [112]
    In the report (dated 11 April 2017) questions considered by Professor Whiteford were:
  • "What is meant by the term 'fight or flight response'?  Does this occurrence result in a person losing their ability to consciously control his/her response to the circumstance?  For example, in this circumstance, would the instance of a fight or flight response mean that RN Sarvestani could not consciously control his reaction to being struck in the solar plexus by the patient?
  • If RN Sarvestani could not (and cannot) consciously control his fight or flight response, how can the Hospital be assured that RN Sarvestani would not react in a similar manner again, if faced with similar situation?"
  1. [113]
    In preparation of the report Professor Whiteford relied upon the following documentation with no examination of Sarvestani undertaken:
  • Affidavit of Sarvestani (dated 25 January 2017);
  • Report of Dr Palk (dated 12 February 2017 and attached affidavit); and
  • Statement of Danko (dated 4 April 2017).
  1. [114]
    Professor Whiteford noted there was some divergence in the description of events provided to Dr Palk by Sarvestani and Danko however there were consistencies around the patient on 8 May 2016 having struck Sarvestani with a blow to the abdomen which caused him pain and resulted in him punching the patient in the face with his right fist.  Danko had intervened at that point and there was no further engagement between Sarvestani and the patient.
  2. [115]
    Following an investigation into the incident Sarvestani's employment as a registered nurse at the PAH was terminated.
  3. [116]
    In terms of Dr Palk's report it was noted he had:
  • expressed an opinion Sarvestani had an adjustment disorder at the time he struck the patient;
  • cause of disorder as a result of considerable stress in his life related to separation in his marriage and unable to have contact with his daughter on the day of the incident (which was her birthday);
  • Sarvestani's referral from a general practitioner to Dr Evans had been made prior to the incident with the patient on 8 May 2016 with his first consultation schedule after that date;
  • treatment by a clinical psychologist had been successful and the risk of a similar incident occurring in the future was very low.
  1. [117]
    Dr Palk diagnosed an adjustment disorder at the time of his assessment on 4 February 2017 which appeared to be at odds with the treatment from the psychologist having been successful with Sarvestani no longer having a mental disorder.
  2. [118]
    Other matters included in the report of Dr Palk were:
  • Sarvestani having arrived in Australia as a refugee from Iran (aged 7) due to religious persecution;
  • Domestic Violence Order taken out against him with no admission of any such violence; and
  • suffering from an auto-immune disorder although unclear if he was suffering symptoms at the time of the incident.
  1. [119]
    In response to the specific areas of concern outlined in the two questions posed, Professor Whiteford stated:
  • the term "fight or flight" refers to a physiological  reaction in an individual in response to a real or perceived threat.  It involves the activation of the nervous system and the release into the bloodstream of catecholamine and steroid hormones causing physiological changes to produce a psychological and physical state to allow an individual to better respond to a real or perceived threat.  The response can take the form of defending the individual against an attack (fight) or fleeing to safety (flight).

The physiological response and activation of the nervous system does not include a loss of impulse control or the emergence of a state that would cause an individual to react in an unpredictable or inappropriate manner.

  • In punching the patient Sarvestani had exhibited impaired impulse control rather than a physiological reaction to a threat posed by the patient.
  • The reason Sarvestani was unable to control the impulse to retaliate when struck by the patient was likely to be the result of culminating stressors in his domestic situation leading to the development of an adjustment disorder with the patient's action being the "final straw".
  1. [120]
    On whether there was a likelihood that Sarvestani would react in a similar manner if placed in a similar situation, Professor Whiteford opined that it depended on a number of factors:
  • stressors that led to the development of the adjustment disorder and loss of impulse control being resolved.  The advice from Dr Palk is that an adjustment disorder is still present;
  • assessment as to whether Sarvestani had been prone to loss of impulse control at times of stress in his life, noting no evidence of this in his work environment; and
  • success of clinical intervention to provide skills in managing stress.

Access to this information would allow for a more informed decision regarding the risk of similar behaviour occurring in the future however even with the information it would not be possible for any psychiatrist or psychologist to be able to predict with certainty whether a person will react violently or aggressively in response to real or perceived threats in the future.

  1. [121]
    The significance placed by Dr Palk on the clinical rating scales completed by Sarvestani was seen to be less significant by Professor Whiteford due to the self-report aspect and responses that can be influenced by the desire to convey a certain impression aligned with the outcome desired from the assessment.
  2. [122]
    In further evidence-in-chief Professor Whiteford indicated the best predictor for the future behaviour is past behaviour so that an individual placed in a certain set of circumstances is more likely to respond in the same way if placed in that situation in the future.  There would need to be a build-up in sufficient psychology distress and stress to the point where the impulse control is lost again.  Whilst not having access to the treating psychologist's reports he expected the treatment would reduce the risk of a similar incident reoccurring again by preventing the build-up of the stress he was under.  In the likelihood of circumstances where he would reach the point of loss of impulse control a person would more likely react the way they had previously because that is the fundamental reaction where a real or perceived threat exists.  Professor Whiteford expected that if Sarvestani had been able to call on all his knowledge and experience he had as a nurse the incident would not have happened however there was an overwhelming and very strong impulse given the amount of stress he must have been under to act against his professional training.
  3. [123]
    Under cross-examination Professor Whiteford accepted that the acrimonious matrimonial breakdown and the loss of contact by Sarvestani with his daughter were at the high end of the scale in terms of typical stressors that people experience day-to-day [Transcript p. 2-43].  If there had been a mutually accepted outcome by both parties regarding the matrimonial issues the stress would be significantly reduced [Transcript p. 2-44].  With the evidence of Dr Evans being that her overall assessment he was a low risk of reoffending as his adjustment disorder was in remission, Professor Whiteford accepted there was definitely a reduced risk [Transcript p. 2-44].  In respect of Sarvestani's past behaviour dictating future behaviour Professor Whiteford stated:

"The person may experience that environment and never experience it again.  So what I guess I'm saying is that when past behaviour predicts future behaviour, it is, in this case, the set of circumstances at the day that this occurred and you'd need to recreate similar circumstances for the past behaviour to predict the future behaviour on that occasion that it reoccurred."  [Transcript p. 2-45]

  1. [124]
    The treatment engaged in by Sarvestani was important in preventing the same amount of stress being taken on board that led to the loss of impulse control.  The likely risk of him engaging in violent behaviour going forward was reduced [Transcript p. 2-46].  In respect of the testing conducted by Dr Palk he did not rely on those tools and would place low weight on their outcomes [Transcript p. 2-47].
  2. [125]
    In re-examination the evidence was that for Metro South having an employee in the workforce with the sorts of stressors in this case they would need to be assured by the treating clinician that there was no evidence of a re-emergence of those stressors or any impulse control issues, or the inability to handle the day-to-day stressors the individual was dealing with.  In his experience "that's what has been required of impaired practitioners in other settings, and often employers rely on that".  There can be no absolute guarantee that it will not reoccur again.

Dr Ashby

  1. [126]
    Dr Ashby as at 8 May 2016 was the Chief Executive of Metro South and in that role was the only person with the authority to terminate the employment of a health service employee.  Dr Ayre had the delegated authority to commence and undertake disciplinary procedures with the further delegated authority to impose disciplinary action other than termination.  If the delegated authority considers the termination of employment may possibly be appropriate in the circumstances they would raise the matter with him however any decision to terminate is "an independent decision made by me [Dr Ashby] based on the material and evidence presented to him".
  2. [127]
    The incident of 8 May 2016 occurred at a time he was on leave therefore he had no involvement in the initial decision to stand Sarvestani down or the decision to commence the initial investigation and later disciplinary process.  Upon his return from leave he was kept generally aware of the process being undertaken but not directly involved.
  3. [128]
    The first formal involvement in the matter occurred on or about 29 August 2016 when he received an internal briefing note from PAH Executive Services requesting him to consider Sarvestani's termination with Metro South.  The briefing note provided was reasonably voluminous which required him to read the material over the period of a few days in order to fully understand and consider that material.  Attached to the notes was a video submission from Sarvestani that he was required to watch.  There was no doubt about the punching of a sedated ICU patient (based on the material) and it was only necessary to consider what action, if any, should be taken in relation to the staff member involved.
  4. [129]
    In correspondence (dated 22 September 2016) Dr Ashby informed Sarvestani that having given consideration to the material available including his responses he had decided to impose the penalty of termination of employment with Metro South, effective immediately.  The considerations had included:
  • the seriousness of the substantiated allegation;
  • overall work record, including any previous disciplinary actions or warnings;
  • any explanation given by him;
  • any extenuating circumstances which may have had a bearing on his actions or the incident;
  • the degree of risk to the health and safety of staff and clients;
  • the impact on his ability to perform the duties of his position; and
  • the impact on public and client confidence in Queensland Health and Metro South.
  1. [130]
    There were references in the letter of termination to steps taken at Metro South and in particular PAH to implement a safe working environment for those providing medical care in the ICU.  Those steps included the ability of staff who felt threatened by a patient to withdraw themselves to a safe place.  The use of personal violence of any kind as retaliation was unacceptable.  With regards to the use of reasonable force the Metro South Occupational Violence Management and Prevention Procedure states that:

"Metro South Health employees have a lawful right to defend themselves or others using reasonable force."

In these circumstances it was Dr Ashby's evidence that Sarvestani's actions in punching the patient in the face was not in his view in defence of himself against a seriously injured, immobile and prostrate patient nor was it use of reasonable force.  Dr Ashby considered that Sarvestani's actions in standing his ground and punching the patient rather than to attempt to restrain the patient's arm or simply stepping back was disproportionate to the potential risk faced given:

  • the almost total power imbalance between the two parties; and
  • there were two other nurses present to assist him to either restrain the patient or takeover from him.
  1. [131]
    Throughout the disciplinary process Sarvestani maintained that his actions in punching the patient occurred without pause of thought which Dr Ashby did not accept for the reason that Sarvestani had described of being winded therefore his secondary response to raise his fist and strike the patient could not reasonably be described as having occurred without pause or thought.  On the accounts of Danko and Proffitt both of whom described Sarvestani as appearing angry and in the case of Danko she was required to physically intervene, it appeared to Dr Ashby that the actions were "rapid but conscious violent reaction to the pain of having been struck".
  2. [132]
    When considering the disciplinary action appropriate to the findings regarding Sarvestani's conduct Dr Ashby gave evidence of specifically turning his mind to whether termination was necessary or whether an alternate lesser penalty could be imposed such as a reduction in classification, formal warning or transfer.  Also taken into account were the following issues raised by Sarvestani:
  • the circumstances shared by him about his personal situation and the breakdown of his marriage;
  • the effect termination would have on his career;
  • that he had not acted violently in the workplace before; and
  • that he was aware of two other health professionals who had assaulted patients without being disciplined.

Enquires were made regarding the allegations in respect of two other health professionals referred to by Sarvestani however no evidence was uncovered.

  1. [133]
    Having separately considered the zero tolerance of the Violence Policy which applied to patients, staff and visitors to the hospital and the issues of Sarvestani's personal circumstances it was determined by Dr Ashby that the only reasonable choice was to terminate the employment as his actions were too severe to reasonably warrant a lessor penalty.
  2. [134]
    Dr Ashby as a result of Sarvestani's actions no longer had trust and confidence in his ability to safely work:
  • with vulnerable patients, as found in the ICU; or
  • in any other patient facing role.

The likelihood where he would in future be required to deal with aggressive or agitated patients, family members or visitors meant that consideration of redeployment was not appropriate in the circumstances.

  1. [135]
    In further evidence-in-chief adduced in the proceedings Dr Ashby stated that irrespective of whether the actions of Sarvestani were unconscious, instinctive or knee‑jerk his conclusions would remain the same and in his 40 years with Queensland Health he had no recollection of any person at the PAH who had violently assaulted a patient.
  2. [136]
    Under cross-examination Dr Ashby accepted that it was not an uncommon experience in ICU for a registered nurse to be exposed to, from time-to-time, levels of violence from patients coming out of sedation.  The patients in a real way display aggressive behaviours both verbally and physically towards practitioners.  Dr Ashby was unaware of any other instance where Sarvestani had responded to an aggressive or violent behaviour in anything other than a professional manner [Transcript p. 3-5].  On evidence from psychologists and Professor Whiteford that Sarvestani's actions were unconscious or an involuntary action Dr Ashby evidenced that he had not heard the precise detail of their evidence and to him it was an automatic reflex similar to having a tendon hammer hit a knee, where your leg would extend [Transcript p. 3-6].  It was not accepted that in the context of Sarvestani's mental health condition his actions were automatic and not a conscious reaction [Transcript p. 3-8].  Whilst there was no record of Sarvestani having engaged in misconduct, misdemeanour or had under-performed prior to the incident of 8 March 2016 Dr Ashby did not consider this could be an excuse or mitigation of his actions [Transcript p. 3-8].
  3. [137]
    Sarvestani according to Dr Ashby had "crossed a line that cannot be crossed" in punching the patient and what happened to him in the ICU in regards to the patient would happen in the Emergency Department three times a night.  There would be people at the PAH (might be 50 people) getting a divorce or a separation and if that was to be accepted as an excuse for punching a patient then there would be chaos across the State's intensive care and mental health units [Transcript p. 3-9].  On the subject of having a bad day Dr Ashby stated:

"Do not come into my workplace and misbehave because I will prosecute you under the code of conduct and under the Public Service Act to the fullest extent that I can.  It is not an excuse, because you're having a bad day, to come into a workplace in a hospital like the Princess Alexandra or any other health workplace and assault a patient or do anything else similar to that."  [Transcript p. 3-10]

Dr Ashby stated that it would not matter what the divorce circumstances were, there is no excuse for a member of staff to punch a patient [Transcript p. 3-10].  Dr Ashby indicated he would not accept a diagnosis of an adjustment disorder from a general practitioner or that it was grounds for mitigation [Transcript p. 3-13].

  1. [138]
    In the case of AHPRA Dr Ashby accepted that it was possible for a doctor to be diagnosed with bipolar to continue to practise subject to conditions under AHPRA with respect to monitoring and maintaining appropriate treatment for a medical condition [Transcript p. 3-13].  Similarly he accepted that there were health practitioners with issues in the form of drug abuse and alcoholism that were subject to supervision and conditions and were ultimately allowed to return to practice in the Queensland Health hospital system [Transcript p. 3-14].  Whilst AHPRA may have seen fit to not suspend or terminate his registration permanently and subject to conditions he was suitable for employment in the health service it was Dr Ashby's position "not in my health service" [Transcript p. 3-14].  An employee with an alcohol issue can be tested relentlessly however in the case of anger and violence there is no blood test [Transcript p. 3-16].
  2. [139]
    In re-examination Dr Ashby said that he would not hire a person with AHPRA conditions without a thorough examination of the circumstances and also the feasibility of the conditions being met without undue stress in the workplace.  He would not hire a clinician who had been violent towards a patient.

Submissions

Applicant

  1. [140]
    It was not of dispute that Sarvestani had engaged in misconduct, namely the assault of a patient in the ICU and in the circumstances of the admitted conduct there was no contest that the disciplinary process was anything but a fair process.  The singular consideration for the Commission was whether the termination was harsh.
  2. [141]
    On 8 May 2016 Sarvestani had nine years of service, six of which were in the ICU and an unblemished employment history.  His personal life was such that in February 2016 there had been an acrimonious separation from his wife, he had been required to leave the matrimonial home and denied contact with his two year old daughter.  Compounding the situation was he had concerns for his daughter being in the care of his wife who had taken out a Domestic Violence Order against him that he was required to address.  These concerns were conveyed to Morris in the workplace and arrangements had been made to see a psychologist.  Sarvestani saw Dr Evans on 11 May 2016 having previously been diagnosed by a general practitioner with an adjustment disorder and his condition was confirmed.
  3. [142]
    There were three witnesses to the event on 8 May 2016 and whilst there was some variance in their evidence the accounts of the key issues were largely consistent.  There was no suggestion the patient's behaviour was anything other than involuntary as a result of agitated delusion and that he struck Sarvestani.  Danko had essentially given written accounts on three separate occasions on what had occurred with there being some subtle but important differences in her accounts.  Also it should be noted that Sarvestani had expressed disparaging views about Danko which were known to her at the time of the preparation of her affidavit but denied by her in cross-examination which was said to be disingenuous behaviour on her part.  Questions were raised about Danko's evidence overall indicating there were sufficient reasons to have concerns overall about the reliability of her evidence and the weight that could be placed on that evidence.
  4. [143]
    Subsequent to the termination there is now the benefit of expert witnesses in the form of Dr Palk and Professor Whiteford about whether or not intent was at play with Professor Whiteford reaching a conclusion that it was not conscious behaviour and in the context of significant life stressors and the adjustment order at the time, Sarvestani suffered impulse control that was impaired.  The evidence that Sarvestani after striking the patient had raised his arm and then froze on the spot was entirely consistent with him being disassociated with the events around him and being in a state of shock.
  5. [144]
    The evidence is clear that at the time of the incident Sarvestani was suffering a mental health condition and whilst he was discharging his duties as an ICU nurse should, he was struck with force in the stomach and winded momentarily, causing him to react automatically and grossly out of character.
  6. [145]
    The circumstances aforementioned should be considered in determining whether the termination of his employment was harsh.  During the disciplinary process he accepted responsibility for his actions and also had AHPRA impose upon him conditions in respect of his nursing registration for a period of 12 months.  Sarvestani never once sought to deny he had engaged in misconduct and acknowledged he had done wrong.
  7. [146]
    The decision maker had a range of disciplinary options available under the PS Act that included transfer, suspension, training, warning and supervision however elected termination based on reasons they considered in providing duty of care for patients.  It was accepted that their duty was significant, however the health service had in the past given another chance to doctors, nurses and other employees with drug and alcohol problems to work under supervision and with Sarvestani having no history of violence or performance issues and who in very unusual personal circumstances had struck a patient.  It was submitted he imposed less of a risk than others who were given another chance.
  8. [147]
    Sarvestani had made multiple job applications but due to the circumstances of his termination and the AHPRA conditions on his registration was effectively unemployable.  Had he remained employed and been diverted to a low patient contact under supervision he could have continued with his career.  Put simply the decision to terminate the employment was harsh.
  9. [148]
    There were two authorities cited by the applicant that were said to be inferential at the very least:
  • Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v The Public Transport Authority of Western Australia [2017] WAIRC 00066[1]; and
  • Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (Wattie)[2].
  1. [149]
    In the case of Wattie he had 22 years of unblemished service and a confluence of personal and work-related issues had negatively impacted upon him at the time of three incidents.  Medical evidence was of a likely link between his depressive symptoms and poor impulsive control in the assaults.  He posed no significant risk of re-offending.
  2. [150]
    In this case the mitigating circumstances in Wattie were almost a template of the circumstances faced by Sarvestani with the evidence of Dr Evans being these formed over the course of his employment placing him at a low risk of violent behaviour in the future.  Dr Palk made a similar finding after conducting a number of clinical tests.
  3. [151]
    Professor Whiteford's evidence around past behaviour dictating future behaviour was referenced with the submission being that past behaviour ought to include the time prior to the 8 May 2016 incident where Sarvestani had never engaged in violent behaviour and could not be considered an inherently violent person.  One moment of involuntary conduct in the context of extraordinary stress should not cost Sarvestani his career and he should be given another chance.
  4. [152]
    The termination was harsh in the circumstances.

Respondent

  1. [153]
    The zero tolerance policy of Metro South applies equally to staff, patients and visitors with nobody engaged in physical violence getting a second chance.  Sarvestani had breached that policy in the most fundamentally outrageous way against a patient with a tracheostomy in his neck and his behaviour was utterly unacceptable and could not be exempted from a policy that was intended to meet a very clear social need.
  2. [154]
    The entire focus of the proceedings had been on Sarvestani's condition, his circumstances and how terrible it was for him however what must be considered is that Metro South is a large statutory organisation which is committed to the one objective of care for sick and injured persons.  They have a large and dedicated ICU which handles patients literally at the edge of death.  If there was the faintest suspicion that a member of staff might engage in some form of violent conduct whether in the ICU or elsewhere against a helpless patient that would be unacceptable.
  3. [155]
    Sarvestani made admissions regarding the conduct on 8 May 2016 including having made a phone call after the event to try and have medication (Heparin) that had been prescribed for the patient by a doctor "pulled" from the patient.  His actions were described as "cynical and self-defensive" because it was in reaction to his assault on the patient.  In hindsight Sarvestani was lucky that the patient had not died given the Heparin in his system and the potential to suffer serious bleeding.
  4. [156]
    Metro South should not be required to reinstate Sarvestani who in their view presented a risk to patients with the clinical judgements and duty of care they hold not allowing for justification of such an order.  The contention that he should be taken back into the ICU to treat patients one-on-one because of the circumstances going on in his life at the time led him to have a bad day was inconceivable.  There can be no excuse for a staff member assaulting a patient in the way that Sarvestani had nor should the employer be required to tolerate such behaviour.
  5. [157]
    There were no cases of a medical practitioner acting in the course of their duties or anyone practising in a medical capacity of having punched an incapacitated patient in the face and the authorities cited by the applicant of a security officer or a corrections officer were occupations quite apart from that of nursing.
  6. [158]
    The highest level of trust is required of medical staff along with the highest standards of integrity and behaviour and the fact that Dr Ashby had "completely lost all faith and trust in Mr Sarvestani because of what he'd done" meant that he had crossed the line and could not be put in any patient engaging role.
  7. [159]
    The evidence of Dr Palk that Sarvestani was not a particularly violent person and probably fairly safe was based on assessment tools that were only right 66 per cent to 70 per cent of the time was not unacceptable for Metro South due to patient care obligations.  Metro South should not be required to have to wonder whether their patients were safe so far as humanly can be achieved by having a staff member who had been unable to demonstrate his behaviour should be excused. 
  8. [160]
    There should be great difficulty in the Commission accepting that Sarvestani was completely accepting and remorseful of how bad his conduct was on 8 May 2016 based upon the content of his application for reinstatement and his evidence in the proceeding.  He had sought to demonise Danko, blame doctors and the hospital for medication prescribed for patients and further rely upon previous behaviour of two other employees of Metro South who had hit patients in similar circumstances.

Note:  In the course of the proceedings Sarvestani withdrew references to the two employees said to have engaged in acts similar to his own.

Further comments had been made to a colleague by Sarvestani a couple of days after the incident about hitting the patient back, because that is what men do to settle things.

  1. [161]
    The evidence of Danko and Proffitt about the incident on 8 May 2016 brought into account differing aspects of Sarvestani's recall and in particular to references regarding his "anger" at the time of being struck which questioned the claim of it being a reflex action and appeared more of a revenge attack.

Note:  In the case of Proffitt her observations were based on Sarvestani after the punch had been thrown.

  1. [162]
    The evidence of Professor Whiteford about Sarvestani's inability to control his natural impulses to punch a helpless patient in the face was not a quality that one would want from an ICU nurse, in fact if someone had demonstrated an instinct to step forward and punch rather than step back they would be too dangerous a person to have in the ICU environment.  Whilst there had been strategies put in place to assist Sarvestani there remained a situation where no one could say that the type of conduct in question could never happen again.  The gravamen of the evidence in relation to the incident being automatic unconscious, accident or deliberate with the bottom-line being it drove Sarvestani's actions in punching the patient.  The position of Metro South following investigations Sarvestani was that he was not somebody who could be trusted to work back with the health service.
  2. [163]
    On the issue of harshness it was Dr Ashby's position that his duty to the public overrides any considerations of harshness that may apply to Sarvestani and when taking into account the extreme nature of his breach of duty to cause no harm to a patient and the patient's vulnerability the only reasonable choice was to terminate the employment.  The conditions imposed by AHPRA have nothing to do with Sarvestani's employment and were like the termination of his employment, a consequence of his conduct on 8 May 2016.  Even if some level of harshness was found it would not be fair at any level to order Sarvestani's reinstatement.

Applicant in Reply

  1. [164]
    A number of issues were dealt with in reply in respect of points of clarification.  They included:
  • Sarvestani attended Dr Evans on his own volition;
  • AHPRA conditions;
  • Danko's evidence not correctly put in submissions;
  • Sarvestani had always expressed remorse; and
  • the risk factor for the respondent.

Conclusion

  1. [165]
    In the course of the proceedings Sarvestani in evidence at no stage resiled from the fact that on 8 May 2016 whilst employed as a registered nurse in the ICU at the PAH he committed a serious assault upon a 63 year old obese patient with life-threatening injuries and who at the time was critically ill due to a range of medical characteristics that included:
  • right lung collapse;
  • chest trauma;
  • multiple rib fractures and small right pneumothorax;
  • acute kidney injury; and
  • hyperkalaemia.

Further the patient at the time was on mechanical ventilation, "life support", due to being unable to sustain breathing on his own and had remained on such support for 30 of the 37 days he spent in the ICU before his transfer to Respiratory High Dependency Unit.

  1. [166]
    In terms of the incident it was not of dispute that the patient in question was at the time under the care of nurse Danko and had become agitated when coming out of sedation, attempting to remove his tracheostomy tube which had prompted Sarvestani to approach the patient to offer assistance.  As the patient became more aggressive the situation worsened to the point where in some manner he struck Sarvestani with force in or around the solar plexus which according to him had the effect of winding him and causing him to bend over.  The response from Sarvestani was to punch the patient in the left side of the face with a right fist and whilst there remains some conjecture around Sarvestani raising his hand to strike the patient a second time, it is the case the patient was struck only the once.  In the course of cross-examination Sarvestani gave the following evidence in respect of his conduct:

"What I did was inexcusable.  What I did was totally wrong.  From what I - how this all happened, I wish to God I could undo it all".

  1. [167]
    Sarvestani claimed that his conduct was out of character as a result of a number of factors in his life at the time and his action in punching the patient was an automatic response to himself having been struck.
  2. [168]
    Notwithstanding it remains that on 8 May 2016 Sarvestani on his own admission punched a critically ill patient under care in the ICU at the PAH, whilst the patient was on "life support" and subsequently had his employment terminated at the conclusion of a disciplinary process undertaken by the respondent.  The disciplinary process had been conducted in accordance with the legislative requirements under the PS Act with the applicant accepting the process was compliant and challenged no aspect of the process.
  3. [169]
    The matter for the Commission was of relative short compass being whether or not the penalty of termination imposed at the conclusion of the disciplinary process was warranted in the circumstances.

Mitigation

  1. [170]
    The foundation of the Sarvestani's case was that his conduct on 8 May 2016 was out of character due to a number of factors occurring in his life at the time of the incident.  Those factors were identified as:
  • separated from his wife on 29 February 2016;
  • divorce and stressful child custody proceeding were in train;
  • allegation of domestic violence had been made by his wife;
  • Domestic Violence Order had been consented to without admission or finding of the Court; and
  • 8 May 2016 was his daughter's birthday and he had been denied access to her on that day.

Sarvestani had sought treatment from a general practitioner and had on 19 April 2016 been referred to a psychologist with the first consultation scheduled for 11 May 2016, three days after the 8 May 2016 incident.

  1. [171]
    Dr Evans the treating psychologist gave evidence of him presenting with moderate symptoms of depression and stress, of feeling unsure about the future as a consequence of the breakdown of his marital relationship, being angry with himself for having physically assaulted a patient at work leading to his suspension with the incident being investigated and referred to AHPRA.
  2. [172]
    Sarvestani had raised with Morris the acting nurse manager at the ICU matters pertaining to the formal separation from his wife, ongoing concerns for the wellbeing of his daughter and of a Domestic Violence Order against him that required him to surrender 27 licensed firearms in his possession.  These conversations had occurred in March 2016 with Sarvestani advising further on 6 May 2016 of the referral to the psychologist.
  3. [173]
    In the course of the March 2016 conversations, Morris had recommended he seek counselling from the Employee Assistance Service and whilst she had concerns at the time for his mental health and wellbeing prior to 8 May 2016, importantly she did not believe he was unfit to undertake his duties as a registered nurse or that his marital issues were negatively affecting the level of care he was providing to his patients.
  4. [174]
    Dr Palk undertook a clinical interview with Sarvestani on 4 February 2017 some nine months after the assault incident and it was his evidence that as Sarvestani had at the time been suffering significant stressors, severe adjustment difficulties with his marriage and Court proceedings which in his opinion would have impacted on his response to being struck by the patient.
  5. [175]
    Professor Whiteford called to give evidence by the respondent had prepared a report relying upon the following documentation:
  • Sarvestani's affidavit (dated 25 January 2017);
  • Dr Palk's report (dated 12 February 2017); and
  • Danko's statement (dated 4 April 2017).

Professor Whiteford opined that Sarvestani had in punching the patient exhibited impaired impulsive control rather than a physiological reaction to a threat posed by the patient and he had been unable to control his impulse to retaliate as a result of culminating stressors in his domestic situation leading to the development of an adjustment disorder, with being struck the "final straw".

  1. [176]
    The evidence of Dr Evans and Morris was contemporaneous to the incident of 8 May 2016 with Dr Evans finding that on 11 May 2016 Sarvestani was experiencing moderate symptoms of stress.  The significance of Dr Evans' opinion was that Sarvestani had been suspended for punching the patient by this time which on the balance of probabilities is likely to have added to the stressors at the time of the incident and yet his symptoms were still at the moderate level.
  2. [177]
    In the case of Morris whilst holding a lessor level of medical qualification than that of a psychiatrist or psychologist she was in the unique position of supervising Sarvestani in the ICU in the lead up to the incident and formed the view that he had worked unimpaired at a time when there were known stressors in his life.
  3. [178]
    In consideration of the evidence of Dr Palk and Professor Whiteford the Commission is minded to accept the views of both, based upon their standing, that Sarvestani's conduct on 8 May 2016 was influenced by mitigating stressors in his life at the time despite not having the contemporaneous involvement of Dr Evans and Morris in reaching their views.

Were the Mitigating Factors Significant?

  1. [179]
    The consideration of the mitigating factors in essence goes to whether Sarvestani's dismissal was proportionate or otherwise to conduct bearing in mind the Commission was not required to make a finding on the actual conduct as such conduct was admitted and not a source of contention in the proceedings.
  2. [180]
    The Chief Executive Officer in determining whether a penalty in the form of the termination of Sarvestani's employment should be considered took into account amongst other things:
  • the seriousness of the substantiated allegation;
  • Sarvestani's overall work record;
  • all explanation given by Sarvestani; and
  • any extenuating circumstances which may have had a bearing on his actions.
  1. [181]
    On the face there is little question that the mitigating factors relied upon by Sarvestani had been given due consideration in the termination decision but had failed to influence the outcome when measured against:
  • the degree of future risk to health and safety of clients and staff; and
  • the impact on Sarvestani's ability to perform the duties of his position.
  1. [182]
    The evidence in the proceedings whilst identifying with clarity the stressors in Sarvestani's life on or around 8 May 2016 does not justify in the view of the Commission the conduct engaged in by him in the form of a physical assault upon a 63 year old, obese, critically ill patient lying prone in a hospital bed in the ICU at the PAH.

Was the termination therefore harsh?

  1. [183]
    Whilst the reliance of mitigating circumstances as significant in terms of Sarvestani's conduct has not been accepted regarding his conduct it can still be assessed by the Commission with regards the harshness of the decision to terminate his employment.
  2. [184]
    In the matter of Parmalat Food Products Pty Ltd v Wililo[3] the Full Bench made the following observation:

"The existence of a valid reason is a very important consideration in any unfair dismissal case.  The absence of a valid reason will almost invariably render the termination unfair.  The finding of a valid reason is a very important consideration in establishing the fairness of a termination.  Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."

  1. [185]
    Further in respect of the issue of harshness apart from the stress relating to his personal circumstances and the development of an adjustment disorder he had experienced immense difficulty in seeking employment in the nursing profession since his termination as a result of the reasons for his dismissal and the conditions imposed upon him by AHPRA with regards to his nursing registration.
  2. [186]
    Dr Ashby when considering the appropriate penalty took into account that he had not previously acted violently in the workplace and the effect the termination would have on his nursing career.  In addition he took into account the zero tolerance policy that operated through the Violence Policy of Metro South.  He no longer had trust and confidence in Sarvestani's ability to work safely in any situation that involved patient care at his hand.  There was also the likelihood he would in future have to deal with agitated or aggressive patients and whether his reaction had been conscious or otherwise Dr Ashby's conclusions would remain the same.
  3. [187]
    Dr Palk having undertaken a range of clinical testing with Sarvestani found he posed a low risk of violence in the future and could return to the workforce without any formal conditions although he would benefit from continuing treatment from his psychologist until medical practitioners determined otherwise.
  4. [188]
    Dr Evans in terms of the future risk of violent conduct by Sarvestani opined that the incident of 8 May 2016 was a "one off" that occurred due to the stressors of his life at the time.
  5. [189]
    Professor Whiteford indicated that past behaviour was the best predictor for future behaviour but expected ongoing treatment would reduce the risk on a similar incident reoccurring in the future.  He further went on to state:

"The person may experience that environment and never experience it again.  So what I guess I'm saying is that when past behaviour predicts future behaviour, it is, in this case, the set of circumstances at the day that this occurred and you'd need to recreate similar circumstances for the past behaviour to predict the future behaviour on that occasion that it reoccurred."  [Transcript p. 2-45]

  1. [190]
    In the matter of Byrne v Australian Airlines Limited[4] McHugh and Cummow JJ on harshness existing despite there being a valid reason for termination stated:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust.  In many cases the concepts will overlap.  Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

  1. [191]
    In this case it is my view based upon the evidence that the conduct engaged in by Sarvestani despite mitigating and other factors warranted in "its own right" the termination of the employment and such a penalty would in the circumstances not be disproportionate based on the gravity of the conduct.
  2. [192]
    The evidence of the medical specialists that there was a limited likelihood of Sarvestani "re-offending" in respect of engaging in similar conduct into the future with all due respect is not the sole determiner for the Commission, as the conduct engaged in on 8 May 2016 should reasonably attract a penalty that fits the seriousness of such conduct so engaged in at the time.
  3. [193]
    Not detracting from the seriousness of the assault upon the ICU patient was the fact that the location where assault occurred was a public hospital.
  4. [194]
    In the matter of Queensland Health v Robinson and Grimley[5] the two wardsmen were engaged in physical encounter (fight) at the Redcliffe Hospital.  In finding on appeal that orders for reinstatement be set aside Williams P stated:

"The evidence is overwhelming that both men were involved in a fight in the corridor leading to the public ward of a hospital and that the incident caused significant distress to patients and nursing staff. It is clear that each in the course of the incident became violent and aggressive towards the other and let anger alone control actions.

There is no doubt that the incident was unacceptable conduct in the workplace, and totally unacceptable conduct in a public hospital. As between the two combatants, questions such as provocation and self-defence are relevant but such considerations could not in my view so mitigate the conduct of either as to lead to a conclusion that dismissal was not called for." [emphasis added]

  1. [195]
    Williams P went on further to state:

"Any incident involving an assault in the workplace must be regarded seriously. So much is recognised by s. 226 of the Act. Here there was a Code of Conduct which applied to all hospital workers; clearly an assault of this nature was a breach of that."

Findings

  1. [196]
    On consideration of the evidence, material and submissions before the Commission, I find that based upon the requisite standard of proof (balance of probabilities) the termination of Sarvestani's employment on 22 September 2016 was not harsh, unjust or unreasonable.
  2. [197]
    The application for reinstatement is dismissed.

Footnotes

[1] Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v The Public Transport Authority of Western Australia [2017] WAIRC 00066

[2] Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036

[3] Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166

[4] Byrne v Australian Airlines Limited [1995] HCA 24

[5] Queensland Health v Robinson and Grimley [1999] QIC 14; 160 QGIG 194

Close

Editorial Notes

  • Published Case Name:

    Sarvestani v State of Queensland (Metro South Hospital and Health Service)

  • Shortened Case Name:

    Sarvestani v State of Queensland (Metro South Hospital and Health Service)

  • MNC:

    [2017] QIRC 85

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    22 Sep 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Byrne v Australian Airlines Ltd [1995] HCA 24
2 citations
Jump To
Cite 1 - [1995] HCA 24
Cite 2 - [1995] HCA 24
Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166
2 citations
Jump To
Cite 1 - [2011] FWAFB 1166
Cite 2 - [2011] FWAFB 1166
Queensland Health v Gary Robinson and Brian Grimley (1990) 160 QGIG 194
1 citation
Jump To
Cite 1 - (1990) 160 QGIG 194
Queensland Health v Robinson and Grimley [1999] QIC 16
1 citation
Jump To
Cite 1 - [1999] QIC 16
Queensland Health v Robinson and Grimley [1999] QIC 14
1 citation
Jump To
Cite 1 - [1999] QIC 14
Queensland Health v Robinson and Grimley (1999) 160 QGIG 194
1 citation
Jump To
Cite 1 - (1999) 160 QGIG 194
Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036
2 citations
Jump To
Cite 1 - [2016] NSWIRComm 1036
Cite 2 - [2016] NSWIRComm 1036
West Australian Branch v The Public Transport Authority of Western Australia [2017] WAIRC 66
3 citations
Jump To
Cite 1 - [2017] WAIRC 66
Cite 2 - [2017] WAIRC 66
Cite 3 - [2017] WAIRC 66

Cases Citing

Case NameFull CitationFrequency
Coffey v State of Queensland (Wide Bay Hospital and Health Service) [2019] QIRC 562 citations
The Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health) [2022] QIRC 361 citation
1

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