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  4. Downie v State of Queensland (Queensland Health) - [2021] QIRC 185

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Downie v State of Queensland (Queensland Health)[2021] QIRC 185

Downie v State of Queensland (Queensland Health)[2021] QIRC 185

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Downie v State of Queensland (Queensland Health) [2021] QIRC 185

PARTIES:

Downie, Lorna Jane

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/48

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary decision

DELIVERED ON:

1 June 2021

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

OUTCOME:

  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 the decision appealed against is set aside in part and I return the matter to the decision maker with a copy of the decision on appeal so that the second show cause letter can be re-issued.

CATCHWORDS:

INDUSTRIAL LAW - PUBLIC SERVICE APPEAL - appeal against disciplinary finding - whether there was grounds to substantiate allegations - whether substantiated allegations gave rise to disciplinary finding

LEGISLATION:

Industrial Relations Act 2016, s 562B, s 562C

Public Service Act 2008, s 194, s 187

Code of Conduct for the Queensland Public Service

Commission Chief Executive Guideline 01/17: Discipline

CASES:

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Reasons for Decision

  1. [1]
    Ms Downie (the Appellant) is employed by the State of Queensland (Queensland Health), (the Respondent) as an Acting Service Improvement Officer (SIO) at Metro North Hospital and Health Service (MNHHS). Ms Downie's substantive role is that of Registered Nurse in the Intensive Care Unit (ICU). On 5 January 2021 following a show cause process, Ms Downie was informed by letter that nine allegations had been substantiated and the decision maker Ms Louise Oriti, Executive Director proposed to reduce her classification, and impose a reprimand.
  1. [2]
    The allegations are as follows:

Allegation 1

It is alleged that on or about 16 July 2020, at approximately 2:00pm on Ward 6 West, Redcliffe Hospital, you misrepresented that status of Patient [redacted] when you informed the Acting Nurse Unit Manager of the Ward, Redcliffe Hospital that Patient [redacted] was a "VIP" [Very Important Person].

…

Allegation 2

It is alleged that on or about 17 July 2020, at 2.49pm, you edited Riskman ID … without legitimate reason and/or authority.

…

Allegation 3

It is alleged that on or about 21 July 2020, at approximately 8:00am on the Ward, Redcliffe Hospital, you accessed hard-copy health records of Patient [redacted] without legitimate reason and/or authority.

…

Allegation 4

It is alleged that on or about 21 July 2020 at approximately 8:00am, you attended the Ward at Redcliffe Hospital and when challenged, you indicated you were conducting a clinical review of Patient [redacted] when you did not have a legitimate reason and/or authority to do so.

…

Allegation 5

It is alleged that, on or about 21 Jul 2020 at approximately 8:00am on the Ward, Redcliffe Hospital, you questioned the Acting Nurse Unit Manager about the nursing care of Patient [redacted] when you did not have a legitimate reason and/or authority to do so.

…

Allegation 6

It is alleged that, on 21 July 2020 at approximately 8:00am on the Ward, Redcliffe Hospital, in response to being advised any concerns regarding Patient [redacted] should be escalated through the Nurse Unit Manager, you told the Acting Nurse Unit Manager you would take the matter up with the Acting Nursing Director, Surgery Service Line.

…

Allegation 7

It is alleged you breached confidentiality by disclosing information of Patient [redacted]

…

Allegation 8

You misused your position as Service Improvement Officer to imply that you had legitimate reason and/or authority to engage in one or more of the preceding allegations.

…

Allegation 9

It is alleged that you have an undisclosed conflict of interest in relation to Patient [redacted]

  1. [3]
    Ms Downie's appeal notice says that the allegations relate to a period of time where she escalated concerns she had about the care of a patient. Ms Downie says that she came across the patient not in her work capacity but escalated the issues in line with her role as she strongly believes all employees have a role in patient safety.  
  1. [4]
    In response to this, the Department says that Ms Downie has failed to separate her private conduct and employment duties and that Ms Downie did not disclose or appropriately manage the conflict of interest.
  1. [5]
    Ms Downie says that based on the evidence before Ms Oriti, the decision was not fair and reasonable. In the alternative, Ms Downie believes any concerns with her performance should have been addressed through positive performance management principles in line with ss 25A and 186C of the Public Service Act 2008 (the PS Act) prior to commencing any disciplinary action.
  1. [6]
    In response to this, the Department says that s 186C of the PS Act is not relevant as the allegations do not relate to Ms Downie's performance. The allegations relate to misconduct where the delegate considered, under s 187 of the PS Act that there were grounds for discipline.
  1. [7]
    At this stage it is clear that disciplinary findings have been made but that no disciplinary penalty has been decided.  This appeal relates only to the disciplinary finding that the 9 allegations are substantiated and that there are grounds for discipline.

Is the Appellant entitled to appeal?

  1. [8]
    Section 194 of the PS Act lists various categories of decisions against which an appeal may be made.  Section 194(1)(b)(i) provides that an appeal may be made against a decision under a disciplinary law to discipline a person (other than by termination of employment), including the action taken in disciplining the person.
  1. [9]
    Ms Downie received a letter containing disciplinary findings on 05 January 2021 and filed an appeal against the decision with the Industrial Registry on 27 January 2021, within 21 days after receipt of the notice.
  1. [10]
    I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [11]
    Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  1. [12]
    Relevantly to this matter, s 562B(4) of the IR Act states that "for an appeal against a decision about ... disciplinary action, the Commission must decide the appeal having regard to the evidence available to the decision maker when the decision was made".
  1. [13]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
  1. [14]
    A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision to substantiate the allegations and determine that there was a disciplinary finding fair and reasonable.
  1. [27]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (b)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Was the decision to substantiate the allegations and determine that there was a disciplinary finding fair and reasonable?

Background and context of allegations

  1. [28]
    Ms Downie was issued a first show cause letter dated 28 September 2020. In a response to this dated 21 October 2020, the Queensland Nurses and Midwives Union writes on behalf of Ms Downie and also attaches a response written by Ms Downie. The following is a collated reproduction of those documents with Ms Downie's responses to the show cause letter in bold:
  • The patient is known to be the [relative] of one of your work colleagues…
  • [The colleague] has stated that you are a good friend.

My intent is always to deliver high quality care to all patients and reduce risk of harm. I do not advantage a patient because they may be known to me, any more than I would disadvantage a patient chained to a prison guard.

  • [The colleague]
  • Is not part of the treating team for the patient; and
  • Made a RiskMan entry in relation to the patient; and
  • RiskMan is to be used by staff for recording events related to their employment and not for events of personal interest.
  • You are not a part of the treating team for the patient.

I am unclear as to the definition of 'treating team'. I consider myself part of the extended team to provide safe care to our patients. In my role I have never been questioned before regarding my reasons for involvement, in fact I would have said it was welcomed.

  • You appear to have:
  • Accessed the records of the patient.
  • Misrepresented the status of the patient to their treatment team.
  • Questioned the treatment plan and care of the patient.
  • Made intimidatory statements towards the treatment team of the patient.

 I had concerns from my observations and sought clarification.

I do not recall making any intimidatory statements to any member of the treating team, and no evidence has been provided in your letter and attachments dated 28/07/2020. I can state I never had any intention to intimidate.

  • During the events in question you held the role of Service Improvement Officer (also variously known as 'Safety and Quality Coordinator' and 'Patient Safety Officer').
  • Your role as Service Improvement Officer did not automatically authorise you:
  • to access, suggest or make changes to the treatment of the patient; and/or
  • access, suggest or make changes to Riskman…

In my role as SIO, I would almost daily access patient information and may make suggestions if appropriate. I have never made changes to the treatment of any patient, including the patient.

I access, suggest or make changes to RiskMan clinical incidents daily and did not regard the patient to be an exception.

  • For unknown reasons you appear to have misused your role as Service Improvement Officer for the potential benefit of the colleague and/or the patient.

I have no understanding of how my colleague could potentially benefit from my involvement. I spoke up for the patient if I was aware that something was less than the standard of care reasonably expected. I would do this for any patient, regardless of how that information became known to me in line with Redcliffe Hospital's Values.

  • It has been suggested (but not established) that your actions may have been motivated by an undeclared and/or inappropriately managed conflict of interest.

My actions were motivated by concern for a patient. I at no point realised there was a real or perceived conflict of interest given the circumstances of my involvement. I also declared my reason for being on the ward to the NUM on the first visit, and it was not suggested to me at that point, nor my subsequent visit, there could be a conflict of interest.

Allegation 1

It is alleged that on or about 16 July 2020, at approximately 2:00pm on Ward 6 West, Redcliffe Hospital, you misrepresented that status of Patient [redacted] when you informed the Acting Nurse Unit Manager of the Ward, Redcliffe Hospital that Patient [redacted] was a "VIP" [Very Important Person].

  1. [29]
    Ms Downie's response to the first show cause notice says that she strongly denies Allegation 1 in its entirety.  Ms Downie says that she at no time stated or suggested the patient was a 'VIP' and she did not request or expect any preferential treatment for the patient.
  1. [30]
    In the second show cause notice, the Respondent says that the Acting Nurse Unit Manager (A/NUM) Ms McCarthy was contacted following receipt of Ms Downie's response for the purpose of revisiting the evidence provided in her file note dated 22 July 2020. Ms Oriti says that Ms McCarthy maintained that her evidence was correct and elaborated that Ms Downie said words to the effect of 'heads up, you have a VIP on the ward'.  In the absence of witnesses, Ms Oriti considered if Ms McCarthy would have falsely reported that Ms Downie said the patient was a VIP Ms Oriti can find no reason for her to do this.
  1. [31]
    Ms Oriti determined that the allegation was substantiated on the balance of probabilities.
  1. [32]
    In her response to the second show cause notice, Ms Downie addresses the reasons provided by Ms Oriti:
  • The conversation never mentioned a 'VIP' and it was never suggested or insinuated that the patient receive any special treatment;
  • there was no reason for Ms Downie to be deceptive in regard to this patient;
  • she did not believe he should be treated any differently to any other patient;
  • the initial conversation Ms McCarthy loosely refers to was around 8.00am the day before, on Wednesday 15 July 2020.  The retrospective file note claims the alleged conversation took place at approximately 2.00pm on Thursday 16 July 2020;
  • the conversation with Ms McCarthy on 16 July 2020 was merely in passing after the patient had returned from theatre;
  • the status of the patient as a VIP or otherwise was not discussed and at no time did she refer to the patient as a VIP;
  • if she were going to make such a statement, it is more likely to have occurred during the discussion the previous day;
  • the suggestion of Ms Downie being in a position to 'declare a patient a VIP' is 'ludicrous', and that if Ms McCarthy believed this was inferred, it should not have been taken seriously.
  • Ms Downie does not believe her conduct has met the threshold for s 187(1)(g) of the PS Act.
  1. [33]
    The Respondent maintains that in applying the balance of probabilities standard, the decision maker can consider whether the incident is more likely to have occurred in the manner alleged.  The delegate had no reason to consider Ms McCarthy's evidence as false.  The decision maker relies entirely on the statement of the A/NUM who wrote a file note about the matter some six days after the event.
  1. [34]
    Ms Downie says that the Respondent did not interview the colleague who could have confirmed or denied if she was there for the conversation in question.
  1. [35]
    Ms Downie is passionate about patient safety for all and would never suggest one patient is more important than another and there would be no reason to declare the patient a VIP as she had only just met him.
  1. [36]
    Ms Downie says that on the balance of probabilities the allegation cannot be substantiated.
  1. [37]
    In final submissions regarding Allegation 1, the Respondent relies on its previous submissions with respect to this allegation and says the decision to substantiate the allegation on the balance of probabilities was fair and reasonable and submits the following:
  • It is correct to note that the file note was completed by A/NUM six days after the events of 16 July 2020.  It is also noted that the Queensland Nurses and Midwives Union (QNMU) written response to the first show cause letter includes a written response from the Ms Downie dated 21 October 2020;
  • The Respondent does not claim that the declaration of a patient to VIP status is something which is practiced or condoned within MNHHS or that Ms Downie has the authority to make such a declaration. The fact that this is not a practice of the health service highlights the inappropriate behaviour in making such a declaration;
  • It is disingenuous for Ms Downie to say that there was no reason for her to declare the patient a VIP as she had only just met him.  The concern relates to Ms Downie's declared relationship with a relative of the patient and to argue on this point further highlights the misconduct.

Consideration: Allegation 1

  1. [38]
    I find that on the balance of probabilities, Ms Downie did make reference to the patient and either called them a VIP or referred to them being in some way special.  It seems to me that in the context of the patient being related to a colleague and this not being a secret, such a remark could be taken to simply be a statement calling out that the patient is someone known to Ms Downie.
  1. [39]
    It appears that there is no such status as VIP used by MNHHS.  As such, I can only see that that reference was more along the lines of 'this person is related to person x.  We know person x as a colleague. Their relative is on the ward.'
  1. [40]
    I find that Ms Downie may have said words to the effect that the patient was a VIP and however, in circumstances where it is agreed that there is no such terminology used in any official capacity at the hospital, I find that any allegation that Ms Downie 'misrepresented the status of a patient' cannot be sustained and therefore cannot lead to a disciplinary finding.
  1. [41]
    The finding that Allegation 1 is substantiated and gives rise to a disciplinary finding is set aside.

Allegation 2

It is alleged that on or about 17 July 2020, at 2.49pm, you edited Riskman ID … without legitimate reason and/or authority.

  1. [42]
    In her response to the first show cause notice, Ms Downie says that she did edit the RiskMan entry.  Ms Downie says that although she edits RiskMan clinical incidents daily, she would not normally have made an edit such as this, and upon reflection, she can see it was unnecessary and incorrect to do so.  Ms Downie said that she would not edit an entry in such a way again, and instead would add a journal entry with a comment if required.
  1. [43]
    The decision maker said that based on the information available and Ms Downie's admission, Allegation 2 was substantiated and that this is grounds for discipline under s 187(1)(b) of the PS Act because she was guilty of improper conduct in an official capacity in that she edited an official document without adequate authority and without collaborating with the NUM.
  1. [44]
    In her response to the second show cause notice, Ms Downie said that she had admitted that on reflection she should not have edited the RiskMan entry in the way she did and had offered a suggestion as to how she would do things differently in future.  Ms Downie said that her edit did not change the incident itself that was being reported by the colleague but was intended to remove the assumption without investigation about what had happened.  Ms Downie said that she did not make changes to hide anything or mislead anyone. 
  1. [45]
    Ms Downie believes that this matter should have been resolved with positive performance management and that her conduct was insufficient to be considered misconduct in line with s 187(1)(b) of the PS Act.
  1. [46]
    In submissions dated 11 February 2021, the Respondent says that Ms Downie has agreed with the allegation and advised that her actions were unnecessary and incorrect.  The Respondent maintains that Ms Downie's improper conduct is a ground for discipline under s 187(1)(b) of the PS Act.
  1. [47]
    In reply, Ms Downie says that there is no suggestion that she was attempting to hide or cover anything in her actions. Ms Downie's only intention in adjusting the RiskMan entry was to remove inappropriate accusations made by the colleague before any investigation had been undertaken.

Consideration of Allegation 2

  1. [48]
    Based on the information available to me and in light of Ms Downie's admission I find that it was reasonable for Allegation 2 to be substantiated.  I am of the view that Ms Downie has enough experience and seniority to know when it is appropriate to edit a RiskMan entry. She demonstrates this by acknowledging that she should not have edited it on this occasion. 
  1. [49]
    The meaning of 'misconduct' was considered in the decision of Coleman v State of Queensland (Department of Education) [2020] QIRC 032 where Merrell DP held:

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[1]

  1. [50]
    Ms Downie should have been well aware that she is not to access and change documents without authority.  There were other options open to Ms Downie if she was of the view that the RiskMan entry was incorrect. Ms Downie's conduct represents a deliberate departure from accepted standards. I find that it was reasonable for the delegate to determine that this conduct gave rise to grounds for discipline under s 187(1)(b) of the PS Act.

Allegation 3

It is alleged that on or about 21 July 2020, at approximately 8:00am on the Ward, Redcliffe Hospital, you accessed hard-copy health records of Patient [redacted] without legitimate reason and/or authority.

  1. [51]
    In her first show cause response to Allegation 3, Ms Downie said that at the time, she believed she had both a legitimate reason (to clarify an apparent inconsistency in care) and authority (as SIO she often accesses a chart to clarify something highlighted in an incident report for example).  Ms Downie says that on this occasion she did not have the opportunity to clarify the order as Ms McCarthy intervened.
  1. [52]
    In substantiating the allegation, the delegate said that Ms Downie's belief that she had a legitimate reason and authority was misplaced on this occasion. Ms Downie was referred to the MNHHS privacy policy and procedure which apply to all MNHHS employees. The delegate said that the patient was known to Ms Downie through her colleague and that as part of her employment she is expected to be aware of her responsibility to disclose and manage the conflict of interest which existed.
  1. [53]
    In her second show cause response, Ms Downie said that regardless of the reason she was on the ward, she witnessed something that was 'clearly not right in patient care'. Ms Downie said her first instinct was to inform the NUM so she could investigate it but she was unavailable at the time.  Ms Downie says that she therefore wanted to seek clarification from the chart as to what the order was so that when Ms McCarthy was available she could pass on the information for her action.
  1. [54]
    Ms Downie says that she does not believe there to be any conflict of interest in her interactions with the patient, having reviewed MNHHSs Conflict of Interest Procedure.  Ms Downie says she was acting as she would at any other time in response to a patient safety concern she had identified.   Ms Downie says that she regularly accesses patient records, be they hard copy or electronic, in the course of her role as Safety & Quality Coordinator to investigate incidents.  Ms Downie says in this case, this was a clinical incident she had seen. She has been on many occasions required to undertake chart reviews at the request of the Director of Safety and Quality and others.
  1. [55]
    Ms Downie says that given her intentions at the time were to aid Ms McCarthy in seeking the correct information and in doing so standing up for patient safety, she believes she did not contravene s 187(1)(f) of the PS Act, and if she did so, it was not in such a serious manner to warrant disciplinary action.
  1. [56]
    The Respondent says that Ms Downie has admitted that she sought clarification from the chart and that she regularly accesses patient records in the course of her role.  However, the Respondent submits that Ms Downie was not on the ward in her work capacity and that she has failed to separate her private conduct and employment duties.
  1. [57]
    The Respondent rejects Ms Downie's submission that she did not contravene the PS Act because her intentions were to stand up for patient safety as this does not excuse a breach of the privacy policy and procedures.
  1. [58]
    In response, Ms Downie says that while she was not on the ward in an official capacity, she considered it became so once she identified clinical concerns.  Ms Downie says that she went on to raise these concerns in an official capacity, just as she would have noted these concerns with any other patient on the ward.
  1. [59]
    Ms Downie says that there is no suggestion from the Respondent that she was accessing the notes for any nefarious reason and that it is accepted that she was doing so with the aim of patient safety as she ordinarily would as part of her role.
  1. [60]
    In final submissions the Respondent says again that Ms Downie was not on the ward in her work capacity and has failed to separate her private conduct and employment duties.   The Respondent says that its privacy procedure is clear in that "staff have no right of access to health records held either in hard-copy or electronically, by virtue of their profession or in their employment category".
  1. [61]
    The Respondent says that it was fair to substantiate Allegation 3 on the balance of probabilities and that this is grounds for discipline under s 187(1)(g) of the PS Act.  This is because Ms Downie contravened, without reasonable excuse, a standard of conduct that is sufficiently serious to warrant disciplinary action, specifically the Code of Conduct for the Queensland Public Service:

Principle 3 – Commitment to the system of government in that you failed to commit to your role in public service when you did not adhere to the Metro North Hospital and Health Service Privacy Policy (POL00459) and Privacy Procedure (PROC004547).

Consideration of Allegation 3

  1. [62]
    I have considered Ms Downie's submissions regarding her role in the hospital and that she feels it is her responsibility to raise concerns about patient safety. I also note Ms Downie's submissions that she accesses patient records in her work role.  However, even when I consider these submissions, the problem I have with the facts in relation to Allegation 3 is that Ms Downie was not on the ward in her work role when visiting the patient and therefore had no legitimate reason or authority to access his chart.
  1. [63]
    If Ms Downie had seen something that concerned her when she was visiting the patient in a private capacity, she needed to raise this with the NUM.  It was not appropriate for Ms Downie to access the patient chart in these circumstances. I accept that Ms Downie sees the safety and best interests of patients as important, however, it is clear in this case, that Ms Downie was only in a situation to identify a concern with the patient's treatment because she was visiting him at the request of her friend. 
  1. [64]
    If Ms Downie was seeking to bring a potential issue regarding safety to the attention of the NUM, it was open to her to speak to the NUM, raise her concern and leave it to the NUM to follow up and determine appropriate steps to be taken. There are clear policies and procedures in place regarding the access of patient information.
  1. [65]
    Ms Downie acknowledges that she accessed the hard-copy health record of the patient.  I accept the Respondent's submissions that Ms Downie did so without legitimate reason and/or authority. In these circumstances, I find that it was open to the delegate to substantiate this allegation.  Further, I find that it was open to the delegate to determine that this conduct is grounds for discipline under s 187(1)(g) of the PS Act.

Allegation 4

It is alleged that on or about 21 July 2020 at approximately 8:00am, you attended the Ward at Redcliffe Hospital and when challenged, you indicated you were conducting a clinical review of Patient [redacted] when you did not have a legitimate reason and/or authority to do so.

  1. [66]
    Ms Downie's initial response to Allegation 4 was that she denied the allegation and she was not, nor did she indicate that she was conducting a clinical review.  Ms Downie says that she wanted to specifically look up an order for a nasogastric tube (NGT) to clarify the situation, as she would do with any other patient where she had clinical concerns.
  1. [67]
    In substantiating the allegation, the decision maker says that even if Ms Downie did not specifically say that she was conducting 'a clinical review', her actions, combined with her statement to Ms McCarthy that she was inquiring why the patient was eating with a NGT on 'free drain', it is likely Ms McCarthy perceived that this is what she was doing by virtue of her safety and quality role.
  1. [68]
    Acting Executive Director, Ms O'Riordan gave evidence that Ms Downie told her she was going to do a clinical review (of the patient). Ms Downie was then told this was not appropriate as the patient is a relative of her friend and colleague. 
  1. [69]
    The delegate determined that based on the independent information provided by Ms O'Riordan and Ms McCarthy, it was more likely than not that Ms Downie indicated that she was conducting a clinical review or words to that effect.
  1. [70]
    In her show cause response, Ms Downie said that she had demonstrated that there were inaccuracies in Ms McCarthy's version of events relating to conversations and timelines.   Ms Downie says that she was not asked if she was there on safety and quality business and not provide a response. Ms Downie says she was asked what she was doing, and said she was checking something and she does not see how this can be misinterpreted as conducting a clinical review.
  1. [71]
    In response to Ms O'Riordan's evidence, Ms Downie submits the Executive Director has incorrectly recalled the event, as she has subsequently denied the conversation.
  1. [72]
    Ms Downie says that in her communication with Ms O'Riordan she referred to 'wanting' to conduct a clinical review because of an incident which occurred, not prior to it occurring.
  1. [73]
    Ms Downie also notes that Ms McCarthy's file note for that day makes no mention of telling her it was Acting Nursing Director, Karen Lang who had told her anyone not directly involved with the patient was not to be present on the ward. Ms Downie says this suggests to her that there had already been a discussion regarding her presence on the ward.  Ms Downie says that it was because she was told Ms Lang had directed this, she told Ms McCarthy that she would go and see Ms Lang to clarify her position.
  1. [74]
    Ms Downie denies that she stated that she was there to conduct a clinical review and that she explained her presence to Ms McCarthy on previous days and made no attempts to lie or hide this. 
  1. [75]
    In a response filed with the Industrial Registry on 11 February 2021, the Respondent submits that Ms Downie was not on the ward in a work capacity.  The allegation that Ms Downie was conducting a clinical review or perceived to be conducting a clinical review, is a reasonable conclusion on the information available to the Respondent, including Ms Downie's own admissions.
  1. [76]
    With regard to Ms Downie's submission that Ms O'Riordan had denied saying that she was on the ward to do a clinical review, the Respondent believes this to be of concern given that by letter dated 28 September 2020, Ms Downie was directed to keep the matter confidential, and if needing to discuss the matter with another employee to contact Ms Oriti in the first instance.  Ms O'Riordan has adamantly stood by information contained in her file note.
  1. [77]
    The Respondent says that the decision to substantiate the allegation was fair and reasonable on the balance of probabilities.
  1. [78]
    In submissions filed on 25 February 2021, Ms Downie maintains that there would have been nothing to warrant a clinical review up until the last incident Ms Downie noted and therefore there was no need to attend the ward that day with plans to conduct one. After the incident, Ms Downie was giving consideration to a clinical review which she maintains would have been appropriate in the circumstances but discarded the proposal once she was directed to stay away from the patient.
  1. [79]
    Ms Downie says that the incident where she accessed the patient notes has been explained and that she was checking orders regarding nasogastric feeding and his immediate care, conducting a clinical review would not have been the first priority.   Ms Downie denies telling anyone she was undertaking a clinical review and believes her actions demonstrate support for this.
  1. [80]
    In response, the Respondent says that Ms Downie confirmed she was 'giving consideration to a clinical review…'.  Ms O'Riordan made a contemporaneous  file note confirming that Ms Downie stated to her that she was visiting the ward to undertake a clinical review.   Ms O'Riordan stands by her recollection of the conversation and maintains that at no stage has she indicated to Ms Downie that her recollection was incorrect.
  1. [81]
    The Respondent maintains that it was fair and reasonable to substantiate Allegation 4.

Consideration of Allegation 4

  1. [82]
    Allegation 4 accompanies Allegation 3 in that they happened during the same occasion at around 8.00am on 21 July 2020. They do relate to different matters, one being access to the patient's file and the other being the nature of Ms Downie's presence and potential intervention in the care of the patient.
  1. [83]
    Ms Downie maintains that it was not her intention to undertake a clinical review and that she did not inform anyone that this was her reason for being on the ward.  However, the evidence available to me demonstrates that Ms Downie was not simply a 'visitor' in this situation.  Ms Downie accessed the patient's file and the evidence was that she was 'checking something' or that she was intending to conduct a clinical review.
  1. [84]
    I cannot find any reason why the witnesses involved would misrepresent the situation.  In circumstances were Ms Downie was on the ward in a non-official capacity, where she was accessing the patient's chart and clearly checking on the treatment being provided with a view to raising concerns about it, I find that it was open to the decision maker to determine on the balance of probabilities that Allegation 4 was substantiated.
  1. [85]
    The delegate found that Ms Downie's conduct was grounds for discipline under s 187(1)(g) of the PS Act because she had contravened, without reasonable excuse, a standard of conduct that is sufficiently serious to warrant disciplinary action, that being the first principle of the Code of Conduct for the Queensland Public Service:

Integrity and Impartiality in that she failed to exercise ethical decision-making and failed to ensure her conduct met the highest ethical standards required of her as a public sector employee.

  1. [86]
    Ms Downie was not on the ward in her work capacity, and yet appears to have purported to be on the ward in a way which would justify accessing a file and reviewing patient treatment.  In these circumstances, I find that it was reasonably open to the decision maker to decide that Ms Downie's conduct was grounds for discipline under s 187(1)(g) of the PS Act.

Allegation 5

It is alleged that, on or about 21 Jul 2020 at approximately 8:00am on the Ward, Redcliffe Hospital, you questioned the Acting Nurse Unit Manager about the nursing care of Patient [redacted] when you did not have a legitimate reason and/or authority to do so.

  1. [87]
    In her initial response to Allegation 5, Ms Downie says that she did escalate her concerns of nursing care to the NUM as she would always do and that everyone has a responsibility to speak up for patient safety.
  1. [88]
    Other relevant statements made in relation to Allegation 5 were drawn out of Ms Downie's submissions and included in the second show cause letter.  These were:
  • I am unclear as to the definition of 'treating team'. I consider myself part of the extended team to provide safe care to our patients. In my role I have never been questioned before regarding my reasons for involvement, in fact I would have said it was welcomed;
  • I had concerns from my observations and sought clarification;
  • I told CM of my concern around the NG, saying the patient was being fed while it was on free drainage.  CM replied that she did not know what the plan was for the day.  I felt she did not understand the significance, so I reiterated the statement, to which she emphasized that she did not know what the surgical plan was for the day;
  • I had not had the chance to clarify the NG order in the chart (although that was my intention had CM not intervened).  I said to CM that I would go and see KL to clarify my position (as I thought it was a misunderstanding and I would be able to continue) and not involve her in the situation;
  • I had only noted a couple of minor issues I addressed at the time by informing the NUM.
  1. [89]
    In substantiating the allegation, the delegate said:
  • I appreciate you were concerned for the patient and subsequently escalated these concerns to Ms McCarthy as the Acting Nurse Unit Manager;
  • I note from Ms McCarthy's file note dated 22 July 2020 that she informed you that she wasn't aware of the update from the ward round and she would follow up with the Team Leader;
  • you state that you felt Ms McCarthy did not understand the significance of your concern, so you reiterated your statement to her. This indicates to me that you were indeed questioning Ms McCarthy and the patient's care despite being provided with a reasonable response.;
  • Ms McCarthy's response was reasonable because, based on your response, you were on the ward on this day to visit the patient with Ms Meyers, his sister and your friend and colleague.;
  • your safety and quality role at the time was to support the provision of safe clinical care not to assess individual patients as part of their treatment;
  • you were not part of the treating team.;
  • I am surprised and concerned with your statement that you are unclear about the definition of 'treating team';
  • I agree that you, as do all MNHHS employees in some fashion, contribute to providing safe care to our patients however, I would expect a nurse with your level of experience to clearly understand the scope of your role as well as the importance of maintaining appropriate professional boundaries.;
  • further, your advice that you intended to clarify the 'NG order' had Ms McCarthy not intervened coupled with your advice that you told Ms McCarthy you intended to take your concerns to Karen Lang, Acting Nursing Director at the time, and not involve her in the situation, indicate to me that you were acting prematurely and on the assumption the order was incorrect.
  1. [90]
    In her response to show cause letter two, Ms Downie says the following with regard to Allegation 5:
  • When I notified Ms McCarthy of the issue I had seen with regard to the NG tube, she said she was unaware of the plan for the day which you understood to be a reasonable response;
  • what I was trying to convey is one should not need to know a plan to know that an NG is never on free drainage while a patient is being fed/given medications orally;
  • regardless of why I was there, I was notifying her [Ms McCarthey] of a significant safety risk.  After she answered me, I reiterated the statement not to question her, but because I was unsure she fully appreciated what I had said;
  • you refer to my safety and quality role at the time being 'to support the provision of safe clinical care not to assess individual patients as part of their treatment'. I believe that is exactly what I did, when I observed a mistake, I spoke up in order for it to be corrected and therefore leading the provision of safe clinical care;
  • I did not assess the individual patient, I just happened to see what I did because I was there;
  • had I noticed a neighbouring patient being fed by an AIN while having an NGT on free drainage I would have equally informed Ms McCarthy of this because I believe that it is everyone's responsibility to stand up for patient safety;
  • I was not going to speak to Karen Lang about the NG or any other clinical issue but to ascertain why it was an issue with my having any contact with [the patient] in my capacity of Safety and Quality Coordinator. I did not believe there was a conflict of interest and I thought there was a misunderstanding.
  1. [91]
    In submissions dated 11 February, the Respondent says that Ms Downie was not on the ward in her work capacity.  Regardless of her intentions, she was there in a private capacity and not to undertake the duties of her role and has failed to maintain appropriate professional boundaries.
  1. [92]
    In submissions dated 25 February, Ms Downie maintains if she had not acted in her official capacity once she had clinical concerns, she would have breached her own professional obligations,[2] and more importantly there could have been negative consequences for the patient affected.
  1. [93]
    In final submissions, the Respondent acknowledges Ms Downie's professional obligations under the NMBA, however adds it applies 'in all practice settings'.  Ms Downie was not on the ward in her work capacity.  She was not part of the treating team and misused her role to question their treatment. 

Consideration of Allegation 5

  1. [94]
    I accept that Ms Downie felt that she had to escalate what she saw as a patient safety issue once she was aware of it.  However, in circumstances were Ms Downie was on the ward as a visitor, the appropriate way of doing this would have been to follow the process a visitor might follow if they thought there was an issue.  Ms Downie took the reasonable step of speaking to the NUM and once she had passed on her concern, that should have been the end of it.
  1. [95]
    However, in Ms Downie's own version of events, she did not think that the NUM had fully comprehended what had been said by Ms Downie and sought to reiterate her point.  It is important to note that Ms Downie was not on the ward in her work capacity.  The team of nurses responsible for providing care to the patient were those rostered on shift and present at the time.  Ms Downie was not one of this team.  She was not working, so it is also the case that she was not on duty in her Safety and Quality Coordinator role.
  1. [96]
    The allegation is that Ms Downie questioned the NUM when she did not have a legitimate reason or the authority to do so.  I find that this allegation is able to substantiated on the balance of probabilities.  It is important to note that I do think that it would be entirely appropriate for a visitor with concerns to raise these concerns with a member of the staff who was on duty. However, I think that Ms Downie went beyond that in this situation.
  1. [97]
    The decision maker determined that this conduct was grounds for discipline under s 187(1)(g) of the PS Act because Ms Downie contravened without reasonable excuse, a standard of conduct that is sufficiently serious to warrant disciplinary action, specifically the first principle of the Code of Conduct

Integrity and impartiality in that she failed to exercise ethical decision making and failed to ensure her conduct met the highest ethical standards required of her as a public sector employee.

  1. [98]
    I find that when Ms Downie went beyond merely raising her concern as could any visitor, her conduct was grounds for discipline under s 187(1)(g) of the PS Act.

Allegation 6

It is alleged that, on 21 July 2020 at approximately 8:00am on the Ward, Redcliffe Hospital, in response to being advised any concerns regarding Patient [redacted] should be escalated through the Nurse Unit Manager, you told the Acting Nurse Unit Manager you would take the matter up with the Acting Nursing Director, Surgery Service Line.

  1. [99]
    In her initial show cause response, Ms Downie refutes the allegation and says that the statement subject of the allegation was incorrect.  Ms Downie said that her reason for wanting to speak with the Acting Nursing Director was because the A/NUM had informed her it was the A/ND who had stated anyone not directly involved in the care of the patient was not permitted to be in the ward.
  1. [100]
    Ms Downie says that she told the A/NUM that she would not involve her (as she had not made the decision), and she would speak to the A/ND. Ms Downie says that Ms McCarthy said nothing on that day or any previous day about escalating concerns to her, as that is that Ms Downie had been doing.
  1. [101]
    In substantiating the allegation, the delegate refers to the submissions above at [88] and [89] and draws upon other submissions of Ms Downie in her show cause response:
  • CM told me that anyone not directly involved in the care of the patient was not allowed to be here, KL had said so. I asked why as I was surprised and didn't understand the issue, I was doing what I would always do;
  • CM stated that KL had directed this…I had not had the chance to clarify the NG order in the chart (although that was my intention had CM not intervened).  I said to CM I would go and see KL to clarify my position (as I thought it was a misunderstanding and I would be able to continue) and not involve her in the situation;
  • CM did not say I had 'crossed the line', nor did she say, 'concerns should be escalated to herself as NUM', which in fact I had been doing.
  • I do not recall making any intimidatory statements to any member of the treating team, and no evidence has been provided in your letter and attachments dated 28/07/2020. I can state I never had any intention to intimidate.
  1. [102]
    The delegate goes on to say:
  • Following receipt of your response CM was asked to clarify her statement in her file note dated 22 July 2020 that she informed you that you had '…crossed the line and any concerns regarding this patient or any other patient should be escalated through the NUM…';
  • it is CM's strong recollection that she said you had 'crossed the line' and she 'definitely' said for you to come to her as the NUM in the first instance;
  • it is evident you and Ms McCarthy hold differing views about this and, in the absence of witnesses, it is not possible to verify this point;
  • I would expect a nurse with your level of experience, working in the area of Safety and Quality, to appreciate the importance of maintaining appropriate professional relationships with hospital management, including line managers;
  • it is basic courtesy to make yourself known to the Nurse Unit Manager or Team Leader when entering a Ward which you say you did on prior occasions;
  • it is clear from the evidence before me that you acted to check the patient chart before raising your concerns regarding the NGT with Ms McCarthy which contradicts your advice in response to Allegation 5;
  • given your statement that you had been escalating your concerns to Ms McCarthy, it is disappointing you chose not to on this occasion;
  • your statements that you were 'doing what I would always do' and that it was your intention to clarify the NGT order in the chart 'had CM not intervened' indicate to me that your actions to avoid escalation to Ms McCarthy in relation to the NGT were deliberate;
  • I accept that you wanted to clarify Ms McCarthy's advice that Ms Lang, in her capacity as the Nursing Director at the time, had directed that anyone not directly involved in the patient's care was not to be there.
  • however, I do not accept that it was appropriate, reasonable or warranted to do this at the exclusion of Ms McCarthy on the basis you thought it was a misunderstanding and you would be able to continue;
  • further, your statement that it was your intention to not involve Ms McCarthy as she had not made the decision is misplaced;
  • as A/NUM, Ms McCarthy was responsible for the Ward and as such, should have been involved in any discussions regarding the patient and fully aware of any actions you may have taken in your Safety and Quality role.
  • based on the information before me, it is evident you attempted to take advantage of your position within the Safety and Quality Unit. You effectively indicated to Ms McCarthy your intention to exclude her form a discussion with her Nursing Director about a patient on her Ward. This proffers the perception you acted to not only intentionally intimidate Ms McCarthy but also undermine her position as the Acting Nurse Unit Manager.
  1. [103]
    In her response to the second show cause notice, Ms Downie maintains that the discussion with the A/ND was regarding Ms Downie not being allowed on the ward, not an attempt to exclude Ms McCarthy.
  1. [104]
    Ms Downie refutes that Ms McCarthy said that Ms Downie had 'crossed the line' or that 'concerns should be escalated to herself as NUM'. Ms Downie says that if CM had said this, Ms Downie would have reminded her that she had been informing/escalating to the NUM.
  1. [105]
    Ms Downie stated that hearing the delegate thinks she lacks basic courtesy by not making herself known when she enters a ward, has caused her some distress.
  1. [106]
    Ms Downie says that she is greatly concerned the delegate has substantiated Allegation 6 citing reasons that actually do not relate to the allegation.  Ms Downie says the reasons for substantiating the allegation seem to accept her explanation for seeking clarification from Ms Lang on a different issue but then substantiate a different allegation.
  1. [107]
    In submissions dated 11 February 2021, the Respondent disputes the submission that the allegation was substantiated citing reasons that do not relate to the allegation.  The Respondent says that the allegation is that in response to being advised that any concerns regarding the patient should be escalated through the A/NUM, Ms Downie told the A/NUM that she would take the matter up with the A/ND.
  1. [108]
    The Respondent submits that Ms Downie's own admission demonstrates her intention to disregard the information provided by the NUM.  The Respondent submits that Ms Downie failed to conduct herself in a professional manner and demonstrate respect.
  1. [109]
    In submissions on 25 February 2021, Ms Downie says that it was made clear to the A/NUM in the conversation where she directed Ms Downie to have nothing further to do with the patient, that the plan to discuss this further with Ms Downie's professional line manager, Ms Lang was in regard to this direction, not the clinical care of the patient.  There was no intention to exclude the A/NUM, the decision had not been hers and so it would have been inappropriate to discuss it further with her. Ms Downie says that this does not mean the direction was disregarded at all; to the contrary, Ms Downie complied with the direction from that moment.
  1. [110]
    In final submissions with regard to Allegation 6, the Respondent says that Ms McCarthy is unambiguous on her recollection of the conversation and is adamant that she stated to Ms Downie that any and all concerns regarding this patient and any other patient should be escalated through the NUM. Ms Downie's actions on the day; her subsequent later statements; and Ms McCarthy's recollections make it fair and reasonable to substantiate the allegation on the balance of probabilities.

Consideration of Allegation 6

  1. [111]
    I accept that Ms Downie told the A/NUM that she was intending to talk to the A/ND.  This does not appear to be in dispute. However, I am unable to conclude with satisfaction on the balance of probabilities, what the intention in speaking to the A/ND was. It is possible that Ms Downie wanted to raise her concerns about the patient with the A/ND because she felt that the A/NUM had not properly responded to her questions, however, I find it equally plausible that Ms Downie was seeking to clarify the advice she had been given about her involvement with the patient.   One of the reasons I find this plausible is that Ms Downie was behaving in a way consistent with her having a view that her conduct with regard the patient on that morning was justified.
  1. [112]
    I am not satisfied on the material available to me that Ms Downie was attempting to intimidate the A/NUM or that she was planning to escalate specific concerns about the patient with the A/ND.  I find it more likely that Ms Downie was seeking to clarify the position that had been taken with regard to her involvement with the patient and that she indicated she would do this with the A/ND as she had been informed that the direction had come from the A/ND.
  1. [113]
    I therefore find that the decision to substantiate Allegation 6 was not fair and reasonable and it is set aside.

Allegation 7

It is alleged you breached confidentiality by disclosing information of Patient [redacted]

  1. [114]
    In her initial response to Allegation 7, Ms Downie says that the only information disclosed to the colleague was that there was no 'escalation stamp' in the chart. Ms Downie says that she would consider the colleague to be a person with sufficient interest in the health and welfare of the patient as per Part 7, s 146 (1)(b) of the Hospital and Health Boards Act 2011 (HHBA).
  1. [115]
    In substantiating Allegation 7, the delegate said:
  • Based on your response to Allegation 7, it is evident you did not first seek to understand if you held the required delegation and/or authorisation to disclose confidential patient information, gained through your employment to [the colleage];
  • further, based on the information before me, you also failed to ascertain if the patient had provided consent for their confidential information to be released;
  • disclosure of information is governed by the Hospital and Health Boards Act (Qld) 2011;
  • disclosure refers to the transfer or release of information outside of the organisation. Disclosure takes place when staff disclose confidential information to any other person, including another staff member;
  • Part 7 – Confidentiality, Section 142 of the HHBA provides that confidential information must not be disclosed. Subdivision 2 of Part 7 sets out when disclosure of confidential information is permitted under the HHBA providing exceptions to this rule for circumstances when information can be disclosed; and
  • as you highlight, section 146 of the HHBA, relevantly provides for 'Disclosure to a person who has sufficient interest in health and welfare of person'. When this section of the HHBA is applied, the approved mechanism for release of information is that either the Manager Information Access or the Director, Clinical Health Information Services will seek the approval of the Director of Medical Services, Redcliffe Hospital.
  1. [116]
    In her second show cause response to Allegation 7, Ms Downie says that that there are no details provided of the confidential information she supposedly disclosed, the only thing she discussed with her colleague was the lack of a stamp on the chart. Ms Downie argues this is not confidential information. 
  1. [117]
    Ms Downie says that she would not disclose anything of a confidential nature to anyone, even had the colleague asked, which she did not. Ms Downie notes that the email detailing the information given to her on this matter did not suggest Ms Downie provided her colleague with any information about their relative's treatment.
  1. [118]
    In submissions dated 11 February 2021, the Respondent rejects Ms Downie's assertion that the substantiation of the allegation provides no details of the confidential information she supposedly disclosed.  Ms Downie's own admission was that she told her colleague there was no stamp in the chart.   The Respondent says that the with respect to her visit on 21 July 2020, Ms Downie explained to her colleague:

the NG should have been removed or spigotted… or [the patient] should not be having any oral intake as the tube would either block, or the food/medications would end up in the drainage bag.

  1. [119]
    In her submissions of 25 February 2021, Ms Downie says that the chart mentioned in this allegation was available at the bedside, and she did not discuss the contents with her colleague other than to note the absence of an unofficial stamp. This does not disclose anything about the patient's care, merely explains the general process of surgical patients.
  1. [120]
    In final submissions in reply, the Respondent says that Ms Downie has confirmed that the chart was available at the patient's bedside however Ms Downie was not on the ward in her work capacity. Ms Downie's view does not demonstrate an understanding of the need to maintain the patient's confidentiality, nor the requirement to separate their private conduct and employment duties.

Consideration of Allegation 7

  1. [121]
    Ms Downie admits that she shared information from the chart with her colleague.  It appears that the information shared regarding the stamp on the chart was only known to Ms Downie because she had accessed the chart and while it did not provide detailed personal information about the patient, it did provide information about how the hospital's procedures were being applied with regard to the patient. This is information which Ms Downie's colleague would not necessarily have had access to without the intervention of Ms Downie.
  1. [122]
    There is no evidence that Ms Downie had sought approval to share the information regarding the absence of a stamp on the file.  It may be that the information was of little consequence and that the colleague would have been able to find out similar information by simply asking the patient or the treating team about what was occurring with regard to the 'general process', however, this is not the point.  There are procedures to be followed when sharing information about a patient and it appears that such procedures were not followed.
  1. [123]
    I find that on the balance of probabilities it was reasonable for the delegate to substantiate this allegation.
  1. [124]
    I also find that it was reasonable for the delegate to determine that the conduct was grounds for discipline in that Ms Downie contravened, without reasonable excuse, a standard of conduct that is sufficiently serious to warrant disciplinary action, specifically the Code of Conduct for the Queensland Public Service: Principle 4 – Accountability and transparency in that Ms Downie provided confidential patient information gained through her employment to her friend who is also a fellow employee.

Allegation 8

You misused your position as Service Improvement Officer to imply that you had legitimate reason and/or authority to engage in one or more of the preceding allegations.

  1. [125]
    In her first response to Allegation 8, Ms Downie says that she believed she was acting as an SIO, and nurse in following up her concerns. 
  1. [126]
    With reference to Ms Downie's show cause response, the Respondent accepted Ms Downie was on duty at the time she visited and acknowledged that all staff have a responsibility to speak up if they observe anything to be amiss. However, the Respondent submits that to say Ms Downie was acting as an SIO is misleading. Ms Downie's response says she was on the ward at the invitation of her colleague for the purpose of visiting the colleague's relative (the patient). She visited the patient with her colleague on three occasions and disclosed that this colleague is a good friend.
  1. [127]
    The delegate submits that agreed that based on the information provided, the patient received three visits from Ms Downie while she was rostered for duty as an SIO. As SIO's are not meant to provide one to one attention to patients, these visits raise concerns that the patient stood to receive more favourable care. 
  1. [128]
    The delegate goes on to say:

I am satisfied you misused your position as Service Improvement Officer to imply that you had legitimate reason and/authority when you:

  • Informed the Acting Nurse Unit Manager of Ward 6 West, Redcliffe Hospital that the patient was a "VIP" as substantiated in Allegation 1;
  • edited RiskMan (for the patient) as substantiated in Allegation 2;
  • accessed hard-copy health records of the patient as substantiated in Allegation 3;
  • indicated you were conducting a Clinical Review of the patient as substantiated in Allegation 4;
  • questioned the Acting Nurse Unit Manager about the nursing care of the patient as substantiated in Allegation 5; and
  • breached confidentiality by disclosing information of the patient as substantiated in Allegation 7.
  1. [129]
    Ms Downie made submissions replying to the second show cause notice which in summary say that she
  • was employed as an SIO and was on rostered shifts when she briefly visited the patient after being introduced;
  • would have been a neglecting her duty if she did not act upon concerns observed;
  • raised concerns regarding other patients at the same time with Ms McCarthy.
  • was not there as a Safety and Quality Coordinator, however she is always conscious of safety wherever she is;
  • did not afford the patient special treatment, raised the concerns as she would have when visiting any other area of the hospital in an official capacity or otherwise; and
  • Ms Downie submits that Allegation 8 is a reiteration of other allegations.

Consideration of Allegation 8

  1. [130]
    In consideration of Allegations 1-7 and the submissions of the parties regarding each allegation, I have not found any new material that serves to differentiate this allegation from the conduct implied by the other allegations.
  1. [131]
    Ms Downie maintains that in her role, she has a responsibility to raise concerns about patient care.  While I have agreed with the delegate that it was not appropriate for Ms Downie to raise concerns and access information in the way that she did, in circumstances where the other allegations deal with Ms Downie's conduct and her explanation of the conduct as being related to her role, I do not find that it is reasonable to duplicate the substantiation of the other allegations in Allegation 8.  The other allegations only arise as a result of Ms Downie's role as an employee, otherwise the conduct would be dealt with in quite a different way.
  1. [132]
    For these reasons, I do not think the decision to substantiate Allegation 8 is fair and reasonable and as such is set aside.

Allegation 9

It is alleged that you have an undisclosed conflict of interest in relation to Patient [redacted]

  1. [133]
    In her initial response to Allegation 9, Ms Downie said that she made the reasons for being on the ward known to the A/NUM on the first visit.  Ms Downie says that if the A/NUM and subsequently the A/ND knew or suspected there was a conflict of interest, this was never raised with her. Having read the Conflict of Interest Self-Assessment Guide, Ms Downie does not believe there was a conflict of interest, as neither she, her colleague or the patient were to benefit from her involvement.
  1. [134]
    In substantiating the allegation, the delegate referred to parts of Ms Downie's first show cause response:
  • I have no understanding of how [her colleague] could potentially benefit from my involvement. I spoke up for the patient if I was aware that something was less than the standard of care reasonably expected.  I would do this for any patient, regardless of how that information became known to me in line with Redcliffe Hospital's Values; and
  • My actions were motivated by concern for a patient. I at no point realised there was a real or perceived conflict of interest, given the circumstances of my involvement.  I also declared my reason for being on the ward to the NUM on the first visit and it was not suggested to me at that point; nor on my subsequent visit that there could be a conflict of interest.
  1. [135]
    The delegate said that in a meeting on 29 July 2020, Ms Downie's colleague advised
  • she asked Ms Downie to visit the ward with her because she held concerns that the staff on the ward did not understand her [relative's] specific needs;
  • that Ms Downie is a good friend and has experience in caring for spinal patients and understand their clinical needs; and
  • that Ms Downie attended the ward as a friend and also given her knowledge of quadriplegia.
  1. [136]
    The delegate said that Ms Downie's assessment of her potential conflict of interest and the inference that it was a matter for Ms McCarthy or Ms Lang to raise with her was a 'narrow interpretation of your responsibilities as a public sector employee' and that failure to declare a real, apparent or possible conflict of interest breaches the Code of Conduct.
  1. [137]
    The delegate also said that SIO's do not provide one-to-one attention to patients.  The patient in question received dedicated attention from Ms Downie and by her own admission, she claims this was in her capacity as an SIO but also highlights that the patient was the relative of her colleague and friend. The delegate went on to say

As a nurse acting at the Grade 7 level working in the area of Safety and Quality, it is disappointing and concerning you have failed to comprehend how policy and procedure relating to the managing of conflicts of interest, real or perceived, apply to you.  Further, you have failed to comprehend your personal responsibility to consider if you have "personal or private interests that may conflict or be perceived to conflict with [your] public duty" as outlined in PROC003366.

  1. [138]
    The delegate said it was evident that Ms McCarthy did identify the potential conflict of interest and took action to escalate the matter to her Nursing Director which was appropriate in the circumstances. The conflict of interest was raised with Ms Downie in the meeting she attended on 30 July 2020 and ultimately, through this discipline process. The potential benefits to Ms Downie's colleague and the patient, were more favourable treatment which was not being provided to other patients on the basis of the friendship between Ms Downie and her colleague.
  1. [139]
    In her response to the second show cause notice, Ms Downie submits:
  • that there was no conflict of interest, perceived or otherwise;
  • she did not visit the patient to 'check on him or his care' specifically but in a brief social capacity;
  • while not there in her official capacity, she reported the minor issues she had noted because she cannot turn a blind eye to something that is not right and all employees should be encouraged to speak up in such a manner;
  • she may have been more aware of the issues because of her experience in her role at the time and previously as an ICU nurse;
  • that turning a blind eye to what she saw as a breach of the code of conduct related to her registration;
  • she did not provide the patient with 'one-to-one' attention in any official capacity – that would be a clear conflict of interest;
  • the Director of Safety and Quality has in the past referred to the S&Q Coordinators as her 'eyes and ears' around the hospital as she cannot be everywhere or know what the issues are without support;
  • she's dealt with the issue of special treatment in the past and recounts a previous patient that was related to a colleague, who requested a single room. Ms Downie identified this as special treatment and told that patient she could not grant the request; and
  • she does not believe that any patient should be treated favourably just because of connections to staff and the above is an example of where she has previously identified such issues and stood up to ensure favourable treatment is not given to anyone.
  1. [140]
    Ms Downie clarifies that if she were on a medical ward, conducting a bedside audit and noted the patient's boards not completed or medication being administered orally whilst an NG tube was on free drainage, she would notify the NUM of the same. She would not ignore the issues because she was on the ward to conduct an audit and not in her capacity of a Safety and Quality Coordinator.

Consideration of Allegation 9

  1. [141]
    Ms Downie was visiting the patient and taking an interest in him at the request of her friend and colleague.  I do not accept that other patients unknown to Ms Downie could expect to receive the same treatment as the patient in the general course of her work.
  1. [142]
    While the visits to the patient have been characterised as of a social nature, it is clear to me from the evidence that Ms Downie had been requested by her colleague to visit the patient, as a result of her professional knowledge and capacity to provide some insight into his treatment.
  1. [143]
    Conflict of interest is a topic well known to employees as a result of their training in the Code of Conduct and the ongoing refreshing of this content. 
  1. [144]
    Ms Downie's submissions that she was not providing the patient with individual care in any official capacity are not consistent with her submissions that once she had concerns about his care, she felt it was her professional duty to raise these concerns.
  1. [145]
    Ms Downie's interest in the patient was as a result of a personal friendship with her colleague.  Merely announcing to staff members or colleagues on the ward that she was acquainted with the patient by way of her friendship with her colleague was not enough.  In fact, even if the provision of that information was enough to have 'declared' the conflict, the conduct Ms Downie went on to demonstrate in relation to the patient indicates that the conflict was not resolved and was not appropriately managed.
  1. [146]
    I find that it was reasonable for the delegate to substantiate Allegation 9 on the balance of probabilities and find that gave rise to grounds for discipline under s 187(1)(g) of the PS Act in that she contravened, without reasonable excuse, a standard of conduct that is sufficiently serious to warrant disciplinary action, specifically the first principle of the Code of Conduct

Integrity and Impartiality in that Ms Downie failed to demonstrate impartiality and integrity when she did not disclose her personal interest concerning the patient in accordance with the Metro North Hospital and Health Service Managing Conflicts of Interest Policy (POL003365) and Managing conflict of interest – MNHHS Procedure (PROC003366) and in doing so, she did not ensure the apparent conflict of interest was resolved in the public interest.

Conclusion

  1. [147]
    As per the above, I find that Allegations 1 and 6 are unable to be substantiated on the balance of probabilities. Additionally I find that the conduct subject of Allegation 8 forms the basis of the other substantiated allegations.
  1. [148]
    I find that it was reasonable for the delegate to substantiate Allegations 2, 3, 4, 5, 7 and 9 on the balance of probabilities. I also find that the conduct subject of these allegations gives rise to the disciplinary findings made by the delegate.
  1. [149]
    I am returning a copy of this decision to the decision maker and ordering that the second show cause letter be revised and reissued.  This may or may not make a difference to the proposed disciplinary action.  I make no comment with regard to the proposed disciplinary action as it is not the subject of this appeal and no decision has been made at this point.

Footnotes

[1] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [64].

[2] Nursing and Midwifery Board of Australia code of Conduct for Nurses, Principle 2.1(c) (NMBA).

Close

Editorial Notes

  • Published Case Name:

    Downie v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Downie v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 185

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    01 Jun 2021

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
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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