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Hill v State of Queensland (Queensland Health)[2021] QIRC 421

Hill v State of Queensland (Queensland Health)[2021] QIRC 421

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hill v State of Queensland (Queensland Health) [2021] QIRC 421

PARTIES: 

Hill, Andrea Joy

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/204

PROCEEDING:

Public Service Appeal – Disciplinary Finding Decision – Fair Treatment Decision

DELIVERED ON:

13 December 2021

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1. The decision in relation to allegation three is set aside and substituted with a decision that allegation three is not substantiated; and

2. The decision in relation to allegations one, two and four are confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – allegations substantiated – whether disciplinary finding was fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 187, 188 and 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Introduction

  1. [1]
    Mrs Andrea Joy Hill ('the Appellant') is currently employed as a Registered Nurse, Operating Suite, QEII Jubilee Hospital ('QEII') by the Metro South Hospital and Health Service ('MSHHS') for the State of Queensland (Queensland Health) ('the Respondent').
  1. [2]
    By appeal notice filed on 4 June 2021, pursuant to chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act'), the Appellant appeals against the disciplinary finding decision made by Mr Kieran Kinsella, Acting Executive Director, QEII ('the decision maker'), dated 10 May 2021 ('the decision').
  1. [3]
    The Appellant indicated in the appeal notice that she is appealing a disciplinary finding to substantiate four allegations with respect to the Appellant's conduct at work.
  1. [4]
    At this stage of the disciplinary process, the Respondent has made a disciplinary finding and provided the Appellant the opportunity to respond to consideration of imposing a disciplinary penalty of redeployment, at level, to alternative duties for 12 months. This appeal will be taken as a fair treatment appeal pursuant to s 194(1)(eb) of the PS Act relating only to the decision to substantiate the allegations and subsequent disciplinary finding.

Appeal principles

  1. [5]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [6]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] As noted above, the appeal is against a fair treatment decision. Therefore, the issue for determination is whether the decision of the decision maker to substantiate the allegations were fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

The substantiated allegations

  1. [8]
    On 23 March 2021, a notice to show cause was issued to the Appellant by Dr Bill Kingswell, Acting Director, QEII, outlining the following allegations:

Allegation One

On 6 February 2021, prior to commencing one of the cases in theatre, you asked Dr Jonathan Kapul if he had a prescription pad. You stated you were in pain and had found that the over the counter medication was ineffective.

…

Allegation Two

On 6 February 2021, prior to commencing a case in Theatre 5, Operating Suite, you proceeded to open 100mg Fentanyl ampoule on the top of the Morgan Trolley and draw a 3ml syringe with the Fentanyl, a Schedule 8 (S8) drug, without a second person present.

…

Allegation Three

On 8 February 2021, you entered Theatre 6, where you offered to discard the Anaesthetist's Oxycodone and proceeded to do so whilst he was busy transferring the patient to the bed. Further, you were observed picking up a Fentanyl ampoule, and were seen walking around the PACU with a syringe within the pocket of your lead apron.

…

Allegation Four

On 18 March 2021, Dr Carolyn Wills received an email from Dr Lisa Webb, Anaesthetist, advising she had just finished intubating a patient (TKR), when she noticed you were holding an empty Oxycodone ampoule (that had previously been drawn up) and were seemingly drawing out any residual Oxycodone.

…

  1. [9]
    On 15 April 2021, the Queensland Nurses and Midwives' Union of Employees ('QNMU') provided a response to the notice to show cause on behalf of the Appellant.
  1. [10]
    On 10 May 2021, a disciplinary finding decision was issued by the decision maker, substantiating the four allegations made against the Appellant and proposing the disciplinary action of redeployment, at level, to alternative duties for 12 months.

Grounds of appeal

  1. [11]
    In the appeal notice, the Appellant outlined the following grounds of appeal. In summary, the Appellant contends that:
  1. (a)
    the decision maker denied the Appellant procedural fairness in the disciplinary process as the substantiated allegations were broad and not specific in that they did not identify the wrongdoing, or why the conduct was considered misconduct, or why the Appellant contravened the Code of Conduct for the Queensland Public Service ('the Code of Conduct'); and
  1. (b)
    in substantiating the allegations, the decision maker relied upon evidence that was subjective, opinion and speculation, lacking the standard of persuasion and probative force required for allegations relating to serious matters, such as the handling of drugs.

Submissions

  1. [12]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.

Respondent's submissions

  1. [13]
    In summary, the Respondent submits that it was open to the decision maker in the circumstances to determine, on the balance of probabilities, that:
  1. (a)
    the Appellant's decision making was unethical,[5]
  1. (b)
    the Appellant failed to adhere to the required procedure for the administration of Schedule 8 drugs,[6] and
  1. (c)
    the Appellant was attempting to draw out a Schedule 8 drug for purposes other than patient care.[7]
  1. [14]
    The Respondent submits that MSHHS has made no decision as to whether disciplinary action will be taken, including whether the proposed disciplinary action of a redeployment, at level, to alternative duties for 12 months has been or will be made until the resolution of this appeal.
  1. [15]
    The Respondent submits that the Appellant has been provided with the evidence being relied upon in relation to the allegation as attachments with the notice to show cause. Further, the QNMU have acknowledged they made submissions in relation to each of the matters raised in the allegation.

Appellant's submissions

  1. [16]
    In summary, the Appellant submits that whilst she was provided with an opportunity to respond to the allegations, the Respondent made the decision by exercising their statutory power unfairly. The Appellant submits that Respondent gave weight to factually incorrect information, drew erroneous conclusions from the evidence, relied on subjective perceptions of witnesses, framed the allegations using terms that implied the Appellant's conduct or intentions and failed to give any weight to the Appellant's reasonable explanation to each of the allegations.
  1. [17]
    The Appellant submits the Respondent's decision for her to be found guilty of misconduct, sufficiently serious to warrant disciplinary action pursuant to s 188(1) of the PS Act, must take into account the totality of the evidence and not manipulate the language of the allegations or retrofit the evidence to substantiate a pre-conceived narrative.
  1. [18]
    The Appellant submits it is not fair nor reasonable and is not open for the Respondent to substantiate the ambiguous allegations by relying on evidence that:
  1. (a)
    was subjective, contained conjecture and included hearsay; and
  1. (b)
    lacked the probative force necessary to conclude the allegations could be substantiated on the balance of probabilities.

Consideration

Allegation one

  1. [19]
    This allegation was outlined in the notice to show cause in the following terms:

On 6 February 2021, prior to commencing one of the cases in theatre, you asked Dr Jonathan Kapul if he had a prescription pad. You stated you were in pain and had found that the over the counter medication was ineffective.

  1. [20]
    The Respondent submits that the following statement in the response to the notice to show cause suggests that the Appellant was aware of the specific conduct in question and why the decision maker deemed that the Appellant may have contravened the Code of Conduct:

There is an implication in this allegation of Ms Hill either requesting Dr Kapul to provide her with a script or Ms Hill expecting Dr Kapul to be obliged to write her a script.

  1. [21]
    The Respondent notes that the Appellant was advised, during the meeting with Ms Amanda Garner, Nursing Director, Surgical Services, QEII and Ms Joanne Summers, Acting Nursing Unit Manager, Operating Suites, QEII on 8 February 2021, that her conduct in asking Dr Kapul whether he had a prescription pad was inappropriate as it was outside the scope of her working relationship with Dr Kapul to discuss personal health matters.
  1. [22]
    The Respondent outlines that the Appellant has stated in her response to the notice to show cause that she does not confirm this, despite the fact that the Appellant, during the discussion with Ms Garner and Ms Summers, confirmed that she did ask Dr Kapul whether he had a prescription pad and attempted to explain the pain she was experiencing at the time as justification for asking the question.
  1. [23]
    The Respondent submits that it was appropriate for the decision maker to rely upon Dr Kapul's contemporaneous recollection of events and the Appellant's confirmation that she did ask Dr Kapul about his prescription pad. It is only on appeal that an alternative position is pleaded.
  1. [24]
    The Respondent further submits that it was fair and reasonable for the decision maker to find that the Appellant's actions in this regard were inappropriate and a contravention of clause 1 of the Code of Conduct.
  1. [25]
    The Appellant refutes the Respondent's submissions where it is suggested the Appellant was aware of the specific conduct in question and why the decision maker deemed she may have contravened the Code of Conduct. The Appellant does not state in her response to the notice to show cause that she asked Dr Kapul if he had a prescription pad. The Appellant submits the evidence did not establish she requested Dr Kapul write a script for her, nor that she expected Dr Kapul to write a script for her.
  1. [26]
    The Appellant does not deny she had a discussion with Dr Kapul, however, she believed her discussion with Dr Kapul to be in the context of a discussion between colleagues working in a medical environment, rather than eliciting formal medical advice from him.
  1. [27]
    The Appellant submits that as set out in the decision, the finding in relation to allegation one was based on the Respondent's interpretation of Dr Kapul's 'feeling of where the Appellant's conversation with him was heading' and that this made him 'feel uncomfortable' placing him in an 'awkward situation'. The Appellant contends there is no evidence from Dr Kapul to form this conclusion.
  1. [28]
    In my view, the Respondent draws a reasonable conclusion that the Appellant placed Dr Kapul in an awkward position by instigating the conversation. At the very least it can be inferred from Dr Kapul's action in reporting the conversation that he did not consider the conversation to be appropriate. The specific allegation, however, relates to whether the Appellant asked Dr Kapul if he had a prescription pad and stated that she was in pain and had found over the counter medication be ineffective. The allegation was substantiated on the basis of the Appellant's admissions as file noted in her meeting with Ms Summers and Ms Garner. The file note outlines the following:

(AG) asked AH if she had asked Dr Kapul if he had a prescription pad. AH said "yes, because I had period pain and asked him what he would recommend for period pain. He is also really thorough and thought that he would know what would work".

  1. [29]
    The Appellant submits that the evidence does not state that she asked Dr Kapul if he had a prescription pad. I note the email from Dr Kapul to Ms Carolyn Wills, Director Anaesthetics, QEII in which he stated:

Prior to the start of one of the cases she asked me if I had a prescription pad. She stated she was in pain and had found over the counter medication was ineffective.

  1. [30]
    I note that the Appellant has not objected to the accuracy of the admissions recorded in the file note. The Appellant acknowledged that this was not the appropriate time or place to initiate this conversation with Dr Kapul. It was open to the Respondent to determine that 'by instigating this conversation with your colleague, you have put them in an awkward situation' on the basis of Dr Kapul's letter reporting the incident. On the basis that the contemporaneous file note has not been challenged and on the direct evidence of Dr Kapul, it was reasonable to substantiate the allegation that the Appellant asked Dr Kapul if he had a prescription pad and stated that she was in pain.
  1. [31]
    On the basis of this substantiated allegation the Respondent determined that there are grounds for the Appellant to be disciplined pursuant to s 187(1)(g) of the PS Act. This section relates to a contravention without reasonable excuse of a standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely the Code of Conduct. Specifically, the Respondent considered that the Appellant has contravened clause 1.1(b) of the Code of Conduct which requires employees to ensure their decision making is ethical. This finding was open to the Respondent and is fair and reasonable in the circumstances.

Allegation two

  1. [32]
    This allegation was outlined in the notice to show cause in the following terms:

On 6 February 2021, prior to commencing a case in Theatre 5, Operating Suite, you proceeded to open 100mg Fentanyl ampoule on the top of the Morgan Trolley and draw a 3ml syringe with the Fentanyl a Schedule 8 (S8) drug, without a second person present.

  1. [33]
    The Respondent submits that by the Appellant's own admission, she is aware of the procedure relating to the dispensing and administering of CD/DS4 medications and 'it is not her usual practice to draw up an S8 without a witness present'. The Appellant does not dispute that she failed to follow the correct procedure in this instance.
  1. [34]
    The Respondent submits that the Appellant's intention when drawing up the Fentanyl does not form part of the allegation or the finding that it is substantiated. However, the Respondent does not dispute that if the Appellant had complied with her obligations in dispensing and administering CD/DS4 medications with a witness present, any inference that the Appellant had ill intentions when she drew up the Fentanyl would be diminished.
  1. [35]
    The Respondent submits that it was appropriate for the decision maker to substantiate the allegation that the Appellant failed to adhere to the procedure for dispensing and administering CD/DS4 medications by not having a relevant witness present. The substantiated allegation is a contravention of clause 3 of the Code of Conduct.
  1. [36]
    The Appellant concedes that drawing the Fentanyl without a direct witness did not comply with the procedure and this alone may lead to the allegation being substantiated. However, the Appellant submits that by being dismissive of the reasonable explanation provided by the Appellant and erroneously not placing any weight on her evidence, the Respondent has failed to apply a fair decision making process.
  1. [37]
    The Appellant's explanation for drawing the Fentanyl in breach of the procedure was that she was trying to be helpful by tidying up Dr Kapul's Morgan trolley before the next case commenced, and that the medication was drawn while there were other nurses in the room.
  1. [38]
    The Appellant made the following statement in her response dated 2 March 2021:

Prior to commencing the next case, I did open a 100mg fentanyl vial that was left on the Morgan trolley by Dr Kapul, and drew it up in a 3ml syringe. There were 2 other nurses present in theatre, but I failed to verbalise my actions. In trying to be helpful and keep things moving along, I acknowledge that I did not follow the correct protocol.

  1. [39]
    The Respondent demonstrated consideration of the Appellant's explanation and noted the fast-paced and stressful environment of work in the theatre. However, the Respondent determined that as an experienced Registered Nurse the Appellant was expected to be familiar with the procedures for the safety of both the patient and herself. The decision that the allegation was substantiated after consideration of the Appellant's submissions is not indicative of an unfair decision making process. On the basis of the Appellant's own admissions, it was open to the Respondent to substantiate this allegation.
  1. [40]
    Following the substantiation of this allegation, the Respondent determined that there were grounds for the Appellant to be disciplined pursuant to s 187(1)(g) of the PS Act. This section relates to a contravention without reasonable excuse of a standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely the Code of Conduct. Specifically, the Respondent considered that the Appellant has contravened clause 3.1(e) of the Code of Conduct which require employees to adhere to the policies, organisational values and organisational documents of their employment agency. On the basis that the substantiated allegation demonstrated the Appellant's failure to adhere to the policies, organisational values and organisational documents of Queensland Health, this finding was open to the Respondent and is fair and reasonable in the circumstances. The Appellant may have benefited from a more detailed explanation in the findings as to the specific procedure to which the Appellant has failed to adhere, although I note that this information was included in the notice to show cause dated 15 March 2021.[8]

Allegation three

  1. [41]
    This allegation was outlined in the notice to show cause in the following terms:

On 8 February 2021, you entered Theatre 6, where you offered to discard the Anaesthetists Oxycodone and proceeded to do so whilst he was busy transferring the patient to the bed. Further, you were observed picking up a Fentanyl ampoule, and were seen walking around the PACU with a syringe within the pocket of your lead apron.

  1. [42]
    The Respondent submits that whilst the Appellant has asserted that she has disposed of the drug 'in view' of the Anaesthetist, the decision maker determined that this does not fulfill the requirements of the CD/DS4 Procedure, that is to have a relevant authorised person witness to confirm and attest that it occurred in accordance with clinical practice.
  1. [43]
    The Respondent submits with respect to the possession of a syringe without clinical reason, the Appellant's justification that she carries a 3ml syringe to execute a saline flush for emergent circumstances cannot be sustained, as doing so is inconsistent with the procedure for flushing an IV cannula site as required in the QEII Procedure QEH2155v3: Peripheral Intravenous Cannulation (PIVC) - Insertion and Management ('PIVC Procedure').
  1. [44]
    The Respondent relies on the position that the Appellant admits to her failure to adhere to the relevant clinical procedures and it was appropriate for the decision maker to substantiate this allegation and that her conduct gave rise to a contravention of clause 3.1 of the Code of Conduct.
  1. [45]
    The Appellant highlights that the Respondent's submissions confirmed it is the Anaesthetist's responsibility to record the wastage and the procedure requires the disposal of excess drugs to be witnessed by another staff member. The Appellant submits that this occurred as outlined in her response.
  1. [46]
    The Appellant submits that the Respondent erroneously concluded the Appellant did not fulfil the requirements of the CD/DS4 Procedure and that contrary to the Respondent's finding, the evidence concludes the Anaesthetist did witness the Appellant discard the drug and had recorded the wastage appropriately.
  1. [47]
    The Appellant submits she has never referred to carrying a 3ml syringe around and similarly, the Respondent's 'particulars' make no such reference. Although not stated in the allegation, the Respondent has determined the Appellant failed to adhere to relevant clinical procedures.
  1. [48]
    The Appellant submits that an erroneous conclusion was drawn that the Appellant conceded she carried a '3ml syringe' around to execute a flush. This conclusion is also relied on by the Respondent to raise 'serious concerns' regarding the Appellant not following the PIVC Procedure.
  1. [49]
    The Respondent states that the drug is required to be discarded in a manner that is 'witnessed' by a second person as per procedure, not just 'in view' of a second person.
  1. [50]
    The allegation is that the Appellant offered to discard the Anaesthetist's Oxycodone while he was busy transferring the patient to the bed and then picked up a Fentanyl ampoule and walked around the Post Anaesthetic Care Unit ('PACU') with a syringe within the pocket of her apron. The Appellant submits that she disposed of the Oxycodone with the Anaesthetist's permission and in view of him and the anaesthetic nurse before the Anaesthetist recorded the wastage.
  1. [51]
    The decision maker concluded that the Appellant did not dispose of the Oxycodone in accordance with procedure on the basis that her disposal was not 'witnessed' in accordance with the required procedure. The Respondent does not dispute the Appellant's account of offering to discard the Oxycodone and proceeding to do so prior to the Anaesthetist recording the wastage. The Respondent appears to have substantiated this allegation on the basis that discarding the S8 drug 'in view' of the Anaesthetist and the anaesthetic nurse 'does not necessarily fulfill the requirement of having the action witnessed by a second person, as per procedure'. The decision maker has not outlined how the Appellant's conduct was inconsistent with the required procedure. Determining that it was insufficient for the Appellant to state that she was disposing of the drug in front of authorised witnesses on the basis that it 'does not necessarily fulfill the requirement' of having a witness is not a reasonable determination. The conduct is either consistent with the procedure or it is not. It is not reasonable to determine that conduct is 'not necessarily' consistent with the procedure, particularly in circumstances in which the specific nature of the breach is not explained. 
  1. [52]
    The other difficulty with allegation three is that the Respondent has included multiple behaviours in the allegation. As outlined above, the allegation that the Appellant did not comply with the relevant procedure has not been particularised to allow for it to be reasonably substantiated. The second behaviour outlined in allegation three was that the Appellant 'was observed picking up a Fentanyl ampoule'. This was particularised in the notice to show cause in the following terms – 'It was noted that you picked up a Fentanyl ampoule, managing to spill some of it, and were then seen walking around PACU with a syringe in your lead apron pocket'. The particulars then refer to ss 94 and 95 of the Health (Drugs and Poisons) Regulation 1996 (Qld) relating to possession and use of controlled drugs. In the decision, the decision maker did not refer to this element of the allegation and the reasons for the decision to substantiate this allegation do not reference this conduct.
  1. [53]
    The third aspect of allegation three relates to the contention that the Appellant 'was walking around the PACU with a syringe within the pocket of your lead apron'. The Appellant stated that it was her occasional practice to have a normal saline flush drawn up and ready to go for the Anaesthetists, particularly when dealing with Emergency patients as she is required by the Anaesthetist to change any IV lines that patients arrive with as they do not have an anti-reflux valve. The Appellant submits that she did not state that the syringe she usually carries is 3ml. The Respondent outlined its concerns regarding the Appellant's submissions regarding the use of a 3ml syringe to flush the IV cannula site in breach of the PIVC Procedure. In the outline of reasons provided by the decision maker, this aspect of the allegation appears to have been substantiated solely on the basis that a 3ml syringe to flush the IV cannula site is in breach of the PIVC Procedure. The carriage of a 3ml syringe rather than a 10ml or larger syringe pursuant to hospital procedure did not form part of the original allegation yet appears to form the basis upon which allegation three has been substantiated. In my view, this consideration is irrelevant as it does not relate to the conduct alleged as part of allegation three.
  1. [54]
    The reasons outlined as to why allegation three was substantiated were inadequate and inconsistent with the nature of the allegation as put to the Appellant in the notice to show cause. It was not open to the Respondent to substantiate this allegation based on the reasons provided. On this basis, the findings associated with allegation three are set aside.

Allegation four

  1. [55]
    This allegation was outlined in the notice to show cause in the following terms:

On 18 March 2021, Dr Carolyn Wills received an email from Dr Lisa Webb, Anaesthetist advising she had just finished intubating a patient (TKR), when she noticed you were holding an empty Oxycodone ampoule (that had previously been drawn up) and were seemingly drawing out any residual Oxycodone.

  1. [56]
    In the Appellant's response to the notice to show cause, she denied any implied allegation that she was drawing out any residual Oxycodone in an empty 3ml syringe for a nefarious purpose, asserting that it was Dr Lisa Webb's, Staff Specialist, Anaesthetics, perception of what she thought had occurred.
  1. [57]
    The Appellant again explains that it was her intention to draw up a normal saline flush, however the Respondent contends that this justification is not plausible as doing so would be inconsistent with the procedure for flushing an IV cannula site.
  1. [58]
    The Appellant strongly denies using a drawing up needle and empty 3ml syringe to draw out any Oxycodone in the empty vial.
  1. [59]
    The Appellant submits the Respondent incorrectly surmises, in its correspondence dated 23 March 2021, the Appellant replaced a kidney dish containing Dr Webb's induction drugs 'when the Appellant noticed Dr Kidd watching her'. The Appellant contends that a reasonable explanation was provided of picking up and glancing at the kidney dish to inform herself of what drugs were administered to the patient in the event she was asked a question about the patient.
  1. [60]
    The Appellant further submits that erroneous assumptions and conclusions were reached by the Respondent when Dr Webb reported she 'thought' the Appellant was 'drawing out any residual Oxycodone', 'acting relatively natural, but clearly knew [Dr Webb] was a bit suspicious', 'pacing around the anaesthetic office to chat… which was not the Appellant's usual tendency' and 'keeping an eye on who [Dr Webb] was talking to after witnessing the incident'. This conduct is refuted by the Appellant who submits that there is no objective or other evidence to corroborate Dr Webb's version of events or her perception of the Appellant's conduct.
  1. [61]
    The Appellant submits that a reasonable explanation was provided of her conduct on that shift and by failing to place any weight on her version of events, the Respondent relied on subjective conjecture and hearsay to make an overall decision of the Appellant's conduct amounting to serious misconduct.
  1. [62]
    I do not accept the Appellant's characterisation of the evidence in relation to this allegation. The evidence relied upon is not 'subjective conjecture and hearsay', rather, it was an eyewitness account provide by the Anaesthetist, Dr Webb. The Respondent demonstrated consideration of the Appellant's explanation and balanced this account with the evidence at hand:

I note you advise that you merely picked up the Oxycodone vile to inspect the label and you drew up the normal saline in the 3ml syringe. Whilst you deny that you were attempting to draw out any residual oxycodone in the empty vile, I find it difficult to accept your version of events, given the consistent nature of the allegations raised against you, by a number of colleagues.

  1. [63]
    The Appellant submits that she picked up the Oxycodone vial to inspect the label and expiry date before putting it back down and then proceeded to draw up the normal saline in the 3ml syringe. The Respondent notes that the Appellant's use of a 3ml syringe as a saline flush is contrary to hospital procedure and poses a significant risk to patients.
  1. [64]
    I accept the Appellant's submissions that weight should not be given to Dr Webb's assumptions regarding the Appellant's state of mind on the basis that the Appellant and Dr Webb have rarely worked together over the last year. However, even if Dr Webb's assumptions regarding the Appellant's state of mind are to be disregarded, it was open to the Respondent to accept that the Appellant had drawn out residual Oxycodone from an empty vial on the basis of Dr Webb's eyewitness account.
  1. [65]
    On the basis that allegation four was substantiated, it was fair and reasonable for the decision maker to consider that there are grounds for the Appellant to be disciplined pursuant to s 187(1)(b) of the PS Act. 

Conclusion

  1. [66]
    Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable in the circumstances.
  1. [67]
    As outlined above, I consider that the decision to substantiate allegations one, two and four, on the balance of probabilities, was fair and reasonable. The findings that the substantiated allegations are grounds for the Appellant to be disciplined pursuant to ss 187(1)(g) and 187(1)(b) of the PS Act on the basis of the substantiated allegations are also fair and reasonable. The setting aside of allegation three does not disturb these findings.
  1. [68]
    The Appellant's submissions that the witness accounts provided by Dr Kapul and Dr Webb cannot be relied upon are not persuasive. Contrary to the Appellant's submissions, the two witness accounts identify specific conduct that may be substantiated on the balance of probabilities.
  1. [69]
    The Appellant was afforded procedural fairness throughout the process, commencing with an opportunity to provide a response to an inquiry regarding the circumstances surrounding the complaints at first instance. The Appellant was then provided an opportunity to respond to the notice to show cause in which the allegations were detailed. The Appellant's response was considered along with all of the evidence available to the Respondent before a disciplinary finding was made.
  1. [70]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[9] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[10]

  1. [71]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances, with the exception of findings in relation to allegation three.

Order

  1. [72]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1. The decision in relation to allegation three is set aside and substituted with a decision that allegation three is not substantiated; and

2. The decision in relation to allegations one, two and four are confirmed.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] Allegation one.

[6] Allegations two and three.

[7] Allegation four.

[8] QEII Procedure QEH225 v 3.1: Controlled Drug (CD) and Designated Schedule 4 (DS4) Drug Management.

[9] [2019] QSC 170.

[10] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Hill v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Hill v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 421

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    13 Dec 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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