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Oss v State of Queensland (Queensland Health)[2022] QIRC 155

Oss v State of Queensland (Queensland Health)[2022] QIRC 155

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Oss v State of Queensland (Queensland Health) [2022] QIRC 155

PARTIES: 

Oss, Linda Therese

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/328

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

6 May 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – allegations substantiated – consideration of penalty – penalty imposed was fair and reasonable.

LEGISLATION:

Criminal Code Act 1899 (Qld), sch 1 s 398

Health (Drugs and Poisons) Regulations 1996 (Qld), s 190

Health Ombudsman Act 2013 (Qld)

Human Rights Act 2019 (Qld), s 25

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)

Health Ombudsman v NPT [2020] QCAT 267

Health Ombudsman v Ferguson [2020] QCAT 464

Nursing and Midwifery Board of Australia v Finlay [2018] QCAT 275

Reasons for Decision

Introduction

  1. [1]
    Mrs Linda Therese Oss ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Clinical Nurse, Charters Towers Hospital Service ('CTHS') at the Townsville Hospital.
  1. [2]
    By letter dated 19 August 2021, the Respondent informed the Appellant of the decision to impose a disciplinary penalty of a reduction in classification from Clinical Nurse (NG6) to Registered Nurse (NG5) and a consequential change of duties, pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [3]
    By appeal notice filed on 9 September 2021, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the PS Act.

Appeal principles

  1. [4]
    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 ch 11 pt 6 div 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. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to impose the disciplinary penalty of a reduction in classification from Clinical Nurse (NG6) to Registered Nurse (NG5) and a consequential change of duties was 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. [6]
    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.

Background – substantiation of allegation

  1. [7]
    On 24 November 2020, a notice to show cause was issued to the Appellant, providing the Appellant the opportunity to respond to the following allegation:

It is alleged that on 9 September 2020, whilst rostered on duty as a CN at the CTHS, you improperly used a public resource (lignocaine administered via an Intranasal Medication Application Device (IMAD)) for your personal purposes.

  1. [8]
    The particulars with which underpinned the above allegation was outlined in the notice to show cause as follows:

Particulars

In a file note dated 10 September 2020, Ms Lyn Wright, Registered Nurse (RN) states that you asked her if there were any IMAD's available, that she was unaware of the purpose of the request, and with the assistance of Ms Tracey Williams, Enrolled Nurse (EN), CTHS searched for and located two (2) IMAD's. When Ms Wright informed you that they found two (2) IMAD's, you responded that "you only want one". Ms Wright recalls that you stated, "lignocaine is really good for headaches", and that she observed you sitting in the tearoom with a syringe drawn up on the table. Ms Wright states that she then offered to "triage" you, which you declined and said, "No I'm just stealing it". Ms Wright further states that Dr Kiran Pujar, Senior Medical Officer (SMO) was present and said, "She's doing her own triage" and laughed.

In a file note dated 10 September 2020, Ms Williams confirms that she assisted with searching for an IMAD and located two. Ms Williams states that you advised that you only needed one, but that you took both.

In a file note dated 10 September 2020, Ms Karen Baudino, acting Director of Nursing (DON), states that she received a telephone call from Ms Alison Fahey, CN about an incident that had occurred the previous day. Ms Fahey advised that around 19:00 hours that Ms Wright and Ms Williams were looking for an IMAD, and that you commented about having a migraine and/or a headache. Ms Fahey states that later in the shift Ms Wright and Ms Williams approached her with concerns, specifically that Ms Wright had asked you if you needed to be triaged for your migraine, but you declined it, and that both Ms Wright and Ms Williams had observed you sitting at the tearoom table with a drawn-up syringe and the intranasal device attached. Dr Pujar, who was present stated, "I'm not giving it, she is". Ms Fahey advised that she had spoken to you at the end of the shift about the management of health issues at work, to which you responded, "well put me on the system then", "lignocaine [is] good for headaches", and "Kiran suggested it – I've tried everything else so why not".

In a file note dated 10 September 2020, Ms Baudino states that she contacted Dr Pujar who states that he recommended lignocaine as treatment for migraines, but that he neither prescribed it nor triaged you.

In a file note dated 10 September 2020, Ms Baudino states that she met with you at the commencement of your shift, that you informed her that you were going to come and see her to say how sorry you were for your "stupid behaviour last night". Ms Baudino states that you informed her that:

  • You had a really bad headache and just wanted the pain to go away;
  • You didn't want to go home and cause staffing problems;
  • Dr Pujar suggested that a sniff of lignocaine works well for headaches when he notices you rubbing your head;
  • You then searched for an IMAD with the assistance of Ms Wright and Ms Williams;
  • You went to the tearoom where you self-administered an amount of approximately 1ml of 1% lignocaine which solved your headache; and
  • You wished that someone had pushed a little more whereby you may have reflected on what a bad idea it was to take the lignocaine.

In an email dated 18 September 2020, Dr Pujar confirmed that he told you to try the intranasal lignocaine after you informed him that that Panadol and Nurofen did not help. Dr Pujar states that he did not give it a thought to prescribe it as it is not usually prescribed when instilled into wounds. Dr Pujar further states that he did not think of triaging you or prescribing [the lignocaine] as he then became busy with a pediatric (sic) patient requiring admission.

In a file note dated 22 October 2020, Dr Pujar provided a more detailed statement.

  1. [9]
    On 1 December 2020, the Appellant requested the following clarification of the allegation:

We request clarification of exactly what the improper use is that you allege and why? For clarity, the particulars that support the allegation rather than all the material (pieces or which are contradictory) –

"…that on 9 September 2020, whilst rostered on duty as a CN at the CTHS, you improperly used a public resource (lignocaine administered via an Intranasal Medication Application Device (IMAD) for your personal purposes", [when you did X which is improper because of X and is sufficiently serious because of X].

  1. [10]
    On 14 December 2020, the Respondent provided to the Appellant on the clarification sought regarding 'improper use', stating:

The 'improper use' alleged is converting the property of Queensland Health (Lignocaine and the Intranasal Medication Application Device) for Ms Oss' personal use without prescription and/or Queensland Health authorisation.

  1. [11]
    On 15 December 2020, the Appellant provided a response to the notice to show cause and on 14 April 2021, the Respondent substantiated the allegation as outlined in the notice to show cause and proposed the disciplinary action of a reduction in classification and consequential change of duties. The Appellant was provided with the opportunity to respond to the proposed disciplinary action. A response was subsequently provided to the Respondent by letter dated 22 April 2021.
  1. [12]
    In considering the Appellant's response, the Respondent provided the Appellant with further information and a further opportunity to respond to the further information by letter dated 23 June 2021.
  1. [13]
    By letter dated 29 June 2021, the Appellant provided the Respondent with a response and a disciplinary penalty decision letter dated 19 August 2021 was subsequently issued by Mr Stephen Eaton, Chief Operating Officer, Townsville Hospital and Health Service ('THHS'), to the Appellant, imposing the disciplinary penalty of a reduction in classification from Clinical Nurse (NG6) to Registered Nurse (NG5) and a consequential change of duties.

Grounds of Appeal

  1. [14]
    In the appeal notice, the Appellant appeals the substantiation of the allegation for the following reasons, that:
  1. (a)
    based on the totality of the evidence, the allegation is not open to the Respondent to find the allegation substantiated;
  1. (b)
    the Respondent has sought to substantiate the allegation on the basis that the Appellant did not receive a triage prior to acting on the verbal order of Dr Pujar and concluded that because the Appellant did not receive a formal triage, that the verbal prescription provided by Dr Pujar was unlawful. However, the allegation was not that the Appellant did not comply with any policy or procedure because she did not get a triage, but that the Appellant used the lignocaine without a prescription;
  1. (c)
    the Respondent failed to provide or articulate any policy which states that the Appellant was required to be triaged prior to acting on the verbal order of the medical officer on shift; and
  1. (d)
    the Respondent has erred in concluding that the Appellant's hindsight reflection, that the Appellant could have done things differently or better, as an admission that she acted unethically.
  1. [15]
    The Appellant contends that the Respondent has failed to provide the Appellant with procedural fairness and natural justice, in that the Respondent:
  1. (a)
    failed to provide material to the Appellant which the Respondent later relied upon to substantiate the allegation;
  1. (b)
    failed to consider or respond to the Appellant's evidence that she presented later in the shift to be triaged but was refused;
  1. (c)
    failed to consider evidence of the context and circumstances within which the alleged incident took place; and
  1. (d)
    relied on hearsay evidence.
  1. [16]
    The Appellant further contends that the Respondent has failed to consider the Appellant's previous performance and that the penalty of demotion is disproportionately harsh, unjust and unreasonable, relying on Nursing and Midwifery Board of Australia v Finlay ('Finlay').[5]

Submissions

  1. [17]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Respondent's submissions

  1. [18]
    The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's appeal notice. In summary, the Respondent submits that:
  1. (a)
    as a Clinical Nurse, the Appellant is bound by the Nursing and Midwifery Board of Australia Code of Conduct for Nurses ('NaMB Code of Conduct') and NaMB Registered Nurse Standards of Practice ('NaMB RN Standards of Practice') which set out the professional behaviour and conduct expectations for nurses;
  1. (b)
    the Appellant knew the correct procedure yet made a conscious decision to remove lignocaine from a trolley and self-administer without triage;
  1. (c)
    irrespective of Dr Pujar's involvement, which cannot be reasonably considered as providing a prescription nor the Respondent's authorisation, the Appellant failed, without reasonable excuse, to adhere to the professional standards required as well as the Appellant's own obligations under the Health (Drugs and Poisons) Regulations 1996 (Qld) ('the HDPR') and the THHS Procedure THHSCLI150979 v13 – Medication administration and storage ('the Medication Procedure');
  1. (d)
    the Appellant has been afforded procedural fairness throughout the disciplinary process, in that:
  1. (i)
    the Appellant was provided an opportunity to respond to the allegation and proposed penalty; and
  1. (ii)
    the Respondent provided further information to the Appellant on 23 June 2021 that was relevant to the decision on penalty and advised that the purpose of the further information was to provide further clarity around why the Appellant ought to have been aware of what was expected of the Appellant with respect to the administration of medication;
  1. (e)
    a fair and reasonable determination was made by substantiating the allegations on the 'balance of probability' having regard to the totality of the evidence. In so doing, the Respondent found that the Appellant could not have reasonably held an honest but mistaken belief that the use of lignocaine did not require a formal triage or written prescription;
  1. (f)
    the Australian Health Practitioner Regulation Agency ('AHPRA') decided to take no further action on 31 May 2021 after the Respondent had found that disciplinary grounds existed and advised that they believed that the steps taken by the Respondent were sufficient to 'achieve safe, professional practice by RN Linda Oss'. The correspondence from AHPRA cannot be read as in any way clearing the Appellant of any wrongdoing or otherwise condoning her conduct;
  1. (g)
    the decision of Finlay is distinguished on the facts;
  1. (h)
    the conduct in which the Appellant has engaged is unethical, lacks integrity and is indicative of poor judgement. It is wholly destructive of the relationship of trust and confidence in the Appellant to exercise appropriate judgement and clinical leadership within the CTHS; and
  1. (i)
    the disciplinary penalty was reasonable and appropriate, and balances recognition of the seriousness of her conduct as against the Appellant's long service and lack of disciplinary history.

Appellant's submissions

  1. [19]
    The Appellant, in accordance with the Directions Order, filed submissions in response to the Respondent's submissions. In summary, the Appellant submits that:
  1. (a)
    the chief executive must believe management action is not likely to address the work performance matter to warrant disciplinary action. Contraventions of a more serious, but single and isolated incident obliges the chief executive to consider whether they have reasonable concerns about proactively modifying the behaviour through management action;
  1. (b)
    the Appellant's alleged conduct ceased at the very instance she reflected it was a mistake on the same day being 9 September 2020;
  1. (c)
    the Appellant took all her available leave after suffering the humiliation and intimidation of being attended at her home by the Queensland Police Service ('QPS');
  1. (d)
    the Appellant's notification record prior to this matter has been pristine and it would be unreasonable for the chief executive to conclude management action is unlikely to address the Appellant's conduct;
  1. (e)
    the Appellant has reflected on the incident with hindsight and it is not something she would do again. When construed in accordance with her pristine record, it is doubtful the chief executive believes demotion is the only way to address and resolve the Appellant's conduct. This is because the incident has been an isolated event and without the support of Dr Pujar, the Appellant would not have administered the lignocaine;
  1. (f)
    a demotion would burden the Appellant's financial stability and would also be extremely unfair and humiliating;
  1. (g)
    the conduct should be regarded as a single and isolated incident of poor conduct which should be rectified through management action;
  1. (h)
    the penalty is harsh, unjust and unreasonable as:
  1. (i)
    a reallocation from Clinical Nurse to Registered Nurse would represent a minimum $400.00 per fortnight reduction in wages; and
  1. (ii)
    the Appellant has already suffered financial detriment as she has used all her available leave waiting to resolve this matter;
  1. (i)
    Directive 14/20 Discipline ('the Directive') places an obligation on the chief executive to consider extenuating or mitigating circumstances applied to the Appellant's actions. At the time of incident, the hospital was significantly busy as staff were triaging patients and awaiting helicopter retrieval for a patient with sepsis. The Appellant submits her use of lignocaine was well intentioned so she could continue to work to her full capacity in an emergency;
  1. (j)
    the Appellant's reputation has suffered throughout this process and if sanctioned a demotion, her reputation will be unlawfully attacked more so, which is incompatible with s 25(b) of the Human Rights Act 2019 (Qld); and
  1. (k)
    the Appellant has suffered significant detriment given the protracted nature of the process she has had to endure.
  1. [20]
    The Appellant refers to Finlay, Health Ombudsman v NPT,[6] and Health Ombudsman v Ferguson[7] and submits that the proposed disciplinary action is disproportionate and punitive and that the demotion is unwarranted in her circumstances. The Appellant submits that there is no evidence the Appellant's conduct deprived any patients of their treatment or pain management and that without such evidence, a demotion is unjustifiable.

Respondent's submissions in reply

  1. [21]
    The Respondent, in accordance with the Directions Order, filed submissions in reply to the Appellant's submissions. In summary, the Respondent submits that:
  1. (a)
    the decision maker on 14 April 2021 was aware of the requirements of the Directive and decided that the Appellant's conduct was a 'deliberate departure from accepted standards and an abuse of the privilege and confidence enjoyed by [the Appellant] as a public service employee'; that grounds for discipline existed; and that disciplinary action was appropriate in the circumstances;
  1. (b)
    the Respondent appropriately reported the matter to the QPS for the offences of 'stealing', pursuant to s 398 of the Criminal Code. It was a matter for the QPS as to how they investigate the complaint and whether they communicate any decision regarding the investigation to the Appellant;
  1. (c)
    the severity of the Appellant's substantiated conduct which involved a breach of policy and procedure, and her professional ethical obligations, nursing standards and the law, is not mitigated by the value of the medication inappropriately consumed;
  1. (d)
    the correct test to be applied when considering the appeal is 'whether the decision appealed against was fair and reasonable' and not whether it was 'harsh, unjust or unreasonable';
  1. (e)
    the Appellant's appeal appears to rely on an argument that she was properly prescribed the medication by Dr Pujar and entitled to consume it. It was reasonably open on the evidence for the decision maker to find that the Appellant was not prescribed lignocaine prior to self-administration;
  1. (f)
    Dr Pujar was reinterviewed numerous times to provide further clarity around the email statement he initially made on 18 September 2020 and to be able to assist the decision maker in whether to form a view that Dr Pujar had properly prescribed lignocaine; and
  1. (g)
    neither the law nor the Directive requires the decision maker to consider a time limit on a demotion decision and the Appellant is not precluded from applying for future opportunities for promotion which the Respondent is required to consider on merit.

Consideration

  1. [22]
    Consideration of an appeal of this kind requires a review of the decision to impose disciplinary action pursuant to s 188(1) of the PS Act to determine if the decision was fair and reasonable in the circumstances. This follows a decision by the Respondent that grounds exist for the Appellant to be disciplined pursuant to s 187(1)(g) of the PS Act.
  1. [23]
    The particulars of the allegation as outlined in [8] refer to an incident on 9 September 2020 when, during a shift, the Appellant removed a 1ml dose of lignocaine from the dressing trolley and self-administered the medication through an IMAD. The Respondent determined that the Appellant sought the assistance of colleagues to locate an IMAD without advising them that it was for her own use. When a colleague identified that the Appellant was intending to self-administer the lignocaine, she inquired if she wanted to be triaged to which the Appellant declined. The Respondent submits that approximately an hour after the Appellant self-administered the lignocaine, Ms Fahey discussed the incident with the Appellant who then responded with, inter alia, the statement 'well put me on the system then'.
  1. [24]
    The notice to show cause stated that the Appellant is employed as a regulated health professional, who in addition to the PS Act and Code of Conduct for the Queensland Public Service ('the Code of Conduct'), is bound by the following which sets out the professional behaviour and conduct expectations for nurses in all practice settings:
  • Nursing and Midwifery Board of Australia (NaMB) Code of Conduct for Nurses; and
  • NaMB RN Standards for Practice
  1. [25]
    Principle 1.2 of the NaMB Code of Conduct requires that:

Nurses practise honestly and ethically and should not engaged in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must:

b.  comply with relevant poisons legislation, authorisation, local policy and own scope of practice including to safely use, administer, obtain, possess, prescribe, sell, supply and store medications and other therapeutic products

  1. [26]
    Standard 3 of the NaMB RN Standards for Practice states that:

RNs, as regulated health professionals, are responsible and accountable for ensuring they are safe, and have the capability for practice. This includes ongoing self-management and responding when there is concern about other health professionals' capability for practice. RNs are responsible for their professional development and contribute to the development of others. They are also responsible for providing information and education to enable people to make decisions and take action in relation to their health.

  1. [27]
    The Appellant sought clarification by letter dated 1 December 2020 as to what actions constituted 'improper use of a public resource', how such actions constituted a breach of principle 1.2 of the NaMB Code of Conduct and/or standard 3 of the NaMB RN Standards for Practice and how that breach would constitute contravention of ss 187(1)(b) or 187(1)(g) of the PS Act.
  1. [28]
    The Respondent provided a letter in response dated 14 December 2020 advising that the 'improper conduct' alleged was 'converting the property of Queensland Health (Lignocaine and the Intranasal Medication Application Device) for Ms Oss' personal use without prescription and/or Queensland Health authorisation'.
  1. [29]
    The Appellant provided a response submitting that the allegation could not be substantiated on the basis that a verbal prescription was provided by Dr Pujar. The Appellant submits that the quantity of lignocaine verbally prescribed by Dr Pujar was available for purchase without a prescription. The Appellant submits that even if the allegation could not be substantiated the alleged conduct fell short of the accepted threshold for misconduct applicable under s 187(1)(b) of the PS Act. The Respondent submits that lignocaine is only available by medical prescription in Australia. I note that the Respondent ultimately did not find that the Appellant was guilty of 'misconduct', rather that the Appellant contravened, without a reasonable excuse, a relevant standard of conduct in a way that is sufficiently serous to warrant disciplinary action pursuant to s 187(1)(g) of the PS Act.
  1. [30]
    The Appellant submits that the Respondent failed to provide the Appellant with procedural fairness and natural justice by not furnishing the Applicant with the 'accepted standards' before determining that the Appellant to be in breach of them. The Respondent submits that the 'accepted standards' that were breached by the Appellant are the Medication Procedure, THHS Procedure THHSCLI161089v3 ('the Prescribing Procedure'), the NaMB Code of Conduct, the NaMB RN Standards for Practice and the HDPR.
  1. [31]
    Following the show cause process in which the Appellant was provided an opportunity to respond to the allegation, the Respondent made a disciplinary finding after determining that the allegation had been substantiated. By letter dated 14 April 2021, the decision maker stated that the Allegation was substantiated and that consideration was being given to imposing a disciplinary action of a reduction in classification from a Clinical Nurse (NG6) to a Registered Nurse (NG5) and a consequential change of duties. The Appellant was invited to respond to the proposed disciplinary action within seven days.
  1. [32]
    I am satisfied that the Appellant was afforded procedural fairness throughout this process.

Disciplinary finding

  1. [33]
    The Appellant states in the grounds of appeal that the allegation was substantiated on the basis that she did not receive a triage prior to acting on the verbal order of Dr Pujar and, because a formal triage was not received, the verbal prescription provided by Dr Pujar was unlawful. The Appellant submits that the Respondent demonstrated bias by making selective use of Dr Pujar's evidence. There is no evidence in this matter of actual or apprehended bias, with this submission simply an objection to the Respondent's conclusions as to Dr Pujar's evidence as a whole. The Appellant submits that Dr Pujar was interviewed a number of times to provide further clarity around the email statement he made initially and to be able to assist the decision maker in determining whether Dr Pujar had properly prescribed the lignocaine. The Appellant submits that Dr Pujar's statement that 'we don't write up for local anaesthetic use' indicates that Dr Pujar considered this to be an insignificant matter and a simple and honest mistake. Even after considering all of Dr Pujar's statements, it was open to the Respondent to conclude that the Appellant failed to follow the correct procedure. The Respondent's conclusion that Dr Pujar's involvement could not reasonably be considered as providing a verbal prescription nor the Respondent's authorisation was a fair and reasonable determination.
  1. [34]
    The Appellant submits that there was no evidence to demonstrate that she had 'deliberately' departed from accepted standards, with the incident involving an honest but mistaken belief that the use of the lignocaine did not require a formal triage. The Respondent determined that the Appellant's actions were 'deliberate' because she refused to be triaged when asked. The Appellant submits that the Respondent failed to consider the Appellant's submission that she was of the honest belief that she did not need to be triaged and that Dr Pujar did not either.
  1. [35]
    The Respondent considered that the allegation was substantiated on the balance of probabilities, determining that the Appellant could not have reasonably held an honest but mistaken belief that the use of lignocaine did not require a formal triage or written prescription on the following basis:
  1. (a)
    the Appellant admitted that she was aware of the Medication Procedure and the HDPR and had completed extensive internal training on same;
  1. (b)
    the Appellant had a long professional practice and extensive practical experience in handling medication as a Clinical Nurse and was well aware of the legal requirements of the use of lignocaine;
  1. (c)
    the Appellant chose to ignore the suggestions of colleagues to be properly triaged and the legal requirements of the Medication Procedure to satisfy her own needs being management of a migraine;
  1. (d)
    having regard to the NaMB Code of Conduct and the NaMB RN Standards of Practice, the Appellant was aware that she was required to practise honestly and ethically and comply with relevant legislation, authorisation, local policy and own scope of practise, including to safely use, administer and obtain medications;
  1. (e)
    having regard to the Prescribing Procedure, the Appellant could not have held a reasonable view that she had been prescribed medication; and
  1. (f)
    the fact that the Appellant was not an 'inpatient' at the CTHS did not excuse non-compliance with either the Medication Procedure or the Prescribing Procedure with regard to the self-administration of lignocaine.
  1. [36]
    For the reasons outlined in the paragraph above, it was open to the Respondent to determine that the Appellant's actions were deliberate rather than mistaken. It may well be the case that the Appellant regretted the conduct upon reflection, as indicated by her comments the following day at work, however this is not evidence that the conduct was not deliberate. The decision not to accept her colleagues' suggestion to properly triage at the time gives significant weight to the view that the decision was not 'honest but mistaken' but, rather, deliberate.
  1. [37]
    The Appellant submits that the Respondent failed to consider that the Appellant attempted to be triaged later but was refused. The Respondent considered the evidence that the Appellant attempted to be triaged as demonstrated by its inclusion in the summary of the Appellant's response. The Respondent did not appear to give significant weight to this action, which, in my view, was reasonable given the circumstances in which the attempt was made. I note that the notice to show cause dated 24 November 2020 states the following:

Later in the shift Ms Fahey advised you that Ms Wright had approached her as your actions had made staff uncomfortable and that Ms Wright had not been comfortable to approach you directly. You acknowledged that triage was the correct procedure, that you then requested that Ms Fahey triage you, which she refused as she had not been a witness to the earlier events.

  1. [38]
    The Appellant's conduct in seeking to be triaged later appeared to be a reaction to being told of the inappropriate nature of her conduct by her colleague rather than an unprompted realisation that she had not followed the appropriate processes. The Respondent was not required to give any greater weight to the Appellant's attempt to be triaged in those circumstances. 
  1. [39]
    The Appellant's grounds of appeal included that the Respondent failed to provide material relied upon to substantiate the allegation and that the Respondent relied upon hearsay evidence. Neither of these grounds were expanded upon in the Appellant's submissions.
  1. [40]
    The Respondent determined that the Appellant had been sufficiently trained in obtaining/dispensing medication, referring to the training and assessment records for the Appellant including the medication policy for inpatients and s 190 of the HDPR. The Appellant submits that the policies referenced by the Respondent were not applicable because she was neither an inpatient nor prescriber. The Respondent stated that compliance with the Medication Procedure is mandatory and as a THHS Nurse it applied to the Appellant at all times. This was not an unreasonable determination.
  1. [41]
    The Appellant submits that the Respondent failed to consider that she stated specifically that she 'honestly and erroneously believed that it would be better to address [her] headache at the time and to remain at work to support the team as opposed to leaving the shift short [staffed]' which is inconsistent with the Respondent's finding that her admission that she should have chosen a different course is evidence that her decision was unethical. On the basis that the Respondent determined that the Appellant's conduct had been deliberate rather than mistaken, it was open for the Respondent to make this finding.
  1. [42]
    On the evidence before the decision maker, it was reasonably open on the evidence for the decision maker to determine that the Appellant was not prescribed lignocaine prior to self-administration and consequently, improperly used a public resource for personal purposes.
  1. [43]
    The decision maker reasonably determined that the substantiated allegation contravened s 187(1)(g) of the PS Act in that the Appellant contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. The relevant standard of conduct is principle 1.1(b) of the Code of Conduct, which requires commitment to the highest ethical standards by ensuring decision making is ethical.

Disciplinary Penalty

  1. [44]
    The Appellant submits that the penalty of demotion is disproportionately harsh, unjust and unreasonable. The Appellant submits that the alleged conduct is not sufficiently serious to warrant the penalty of demotion, noting that there is no evidence the Appellant's conduct deprived any patients of their treatment or pain management.
  1. [45]
    The Appellant refers to a number of cases that highlight the need to impose protective measures for the benefit of the public. The Appellant refers to Finlay, submitting that the employee's conduct in that matter impacted on 34 patients and resulted in demotion. I firstly note that the penalty in this matter was not simply a demotion, but a significant number of additional conditions attached to the employee's registration for a further twelve months. I also note that QCAT took into consideration the fact that the employee had been subjected to onerous supervision conditions for five years and has been supervised as a level 1 Registered Nurse in circumstances where she has practised as a nurse for over 27 years. This decision also acknowledged the need for both personal and general deterrence. The sanction in this matter is not analogues to the current matter given the totality of the employee's sanctions.
  1. [46]
    The Appellant also refers to the matter of Health Ombudsman v NPT[8] in which the employee took over 300 ampules of sch 4 and sch 8 drugs to treat symptoms of his back problem. QCAT ordered that the employee be disqualified from applying for registration as a registered health practitioner for six months. The Appellant submits that this employee received less of a sanction than that proposed to the Appellant despite the employee's more serious conduct.
  1. [47]
    I note that in considering the penalty in Health Ombudsman v NPT, QCAT stated:

…Given the nature of the dishonesty involved a reprimand is appropriate, and in the light of the outcomes in other matters, it is appropriate for the respondent to be out of the profession for three years overall. Accordingly, a period of disqualification of six months from the date of the order is appropriate.[9]

  1. [48]
    The penalty reflected a view that it was appropriate for the employee to be out of the profession for three years overall, with the period of six months disqualification recognising the fact that the employee had not practised for two and a half years after surrendering his registration. A three-year disqualification penalty is significantly more serious than the penalty proposed in this matter.
  1. [49]
    The Appellant also referred to the matter of Health Ombudsman v Ferguson,[10] in which the employee stole 1000mgs of fentanyl, falsified records to conceal this theft and injected the fentanyl in the staff toilet during his shift. The Appellant submits that QCAT accepted further suspension of the employee's registration was unwarranted and a reprimand was appropriate. The Appellant submits that the conduct in this case is very similar to the Appellant's, however fentanyl is a sch 8 drug and is more dangerous than lignocaine. In these circumstances, the Appellant submits that by analogy, a reprimand is all that is warranted for the Appellant. I note that in consideration of the appropriate sanction, QCAT noted that the employee in that matter had been subject to conditional registration for approximately two years prior to QCAT's decision. It is not the case that a reprimand was the only consequence of the employee's conduct.
  1. [50]
    The Appellant acknowledged the need to distinguish between the overriding purpose of the Office of the Health Ombudsman and those of the employer, however, submits that the reasoning expressed behind the decisions in the above matters are still relevant and compelling. QCAT's considerations under the Health Ombudsman Act 2013 (Qld) are different to the considerations of an employer and the nature of sanctions given in the comparative cases submitted in this matter relate to the professional registration of health professionals. Decisions regarding the appropriate disciplinary action for behaviour in the workplace that constitutes a breach of a code of conduct will necessarily involve considerations beyond the issue of the employee's registration such as trust and confidence. In consideration of the cases submitted for comparison and noting that the Appellant appears to have received no other sanction for the conduct, I do not consider that the disciplinary action to be unfair or unreasonable.
  1. [51]
    The Appellant submits that her conduct was concurrently investigated by AHPRA on behalf of the NaMB who found the Appellant posed no risk to public health and safety. I accept the Respondent's submission that AHPRA's advice that they believed that the steps taken by the Respondent were sufficient to 'achieve safe, professional practice by RN Linda Oss' cannot be read as clearing the Appellant of any wrongdoing or otherwise condoning her conduct.
  1. [52]
    The Respondent disputes the submission that the disciplinary penalty would result in a reduction in wage of $400.00 per fortnight (without shift penalties), stating that the reduction in classification from NG6 (Level 1, Increment 4) to NG5 (Increment 7) represented an hourly rate reduction of $4.2816 per hour. This would result in a reduction of $274.02 per fortnight based on the Appellant's current 64 hours fortnight (without allowances and penalties). The Respondent annexed a current wage rates table published by the Department of Health which was consistent with their submission as to the reduction amount. I accept that even at the lesser amount of $274.02, the demotion represents a significant reduction in salary for the Appellant.
  1. [53]
    The Appellant submits that her reputation has suffered throughout this process and notes that a decision maker has an obligation to make decision in a way that is compatible with s 25(b) of the Human Rights Act 2019 (Qld), which provides that a person has the right not to have the person's reputation unlawfully attacked. The making of a disciplinary finding and imposition of a disciplinary penalty through a show cause process involving procedural fairness is not an unlawful attack on a person's reputation.
  1. [54]
    The Appellant submits that she has suffered significant detriment given the protracted nature of the process, including the QPS visiting the Appellant at her residence in front of her family 'under request from the Hospital to charge her with stealing $3 worth of Lignocaine'. The Appellant submits that the QPS had still not advised if the investigation had concluded leaving her in a constant state of anxiety. The Respondent denies that the QPS investigated the Appellant's conduct at their request, submitting that they appropriately reported the matter to the QPS for the offences of 'stealing' pursuant to s 398 of the Criminal Code as well as 'unlawful possession of restricted drugs' pursuant to the HDPR. I accept that once the matter had been reported, it was a matter for the QPS as to how they investigated the complaint, including the timing of any communication regarding the status of the investigation to the Appellant. These processes are outside the control of the Respondent. The Appellant has referenced the cost of the lignocaine being '$3' and whilst I accept this reflects the low level of the dose that was taken, I do not consider that significant weight should have been placed on the cost of the dose that was taken.
  1. [55]
    The Appellant made numerous submissions that there was no evidence that the Appellant's conduct deprived any patients of their treatment or pain management. The conduct itself warrants the disciplinary action, and the conduct is not less serious because patients were not deprived of the relevant treatment.
  1. [56]
    The Respondent submits that the Appellant is an experienced Clinical Nurse in a rural and relatively unsupervised role with responsibility of clinical leadership and decision making, noting the significant degree of trust and confidence required in light of the position's critical functions. I accept that these were relevant considerations in determining the disciplinary action to be taken following the disciplinary finding.
  1. [57]
    The Respondent correctly notes that the correct test to be applied when considering the appeal is whether the decision appealed against was fair and reasonable pursuant to s 562B of the IR Act, not whether it was harsh, unjust or unreasonable.
  1. [58]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[11] 

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.[12]

  1. [59]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances. The penalty is, in my view, proportionate to the substantiated conduct.
  1. [60]
    Based on the information before me, I am satisfied that the decision to impose a disciplinary penalty of a reduction in classification from Clinical Nurse (NG6) to Registered Nurse (NG5) and a consequential change of duties is fair and reasonable in the circumstances.

Order

  1. [61]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is 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] [2018] QCAT 275.

[6] [2020] QCAT 267.

[7] [2020] QCAT 464.

[8] [2020] QCAT 267.

[9] Ibid [19].

[10] [2020] QCAT 464.

[11] [2019] QSC 170.

[12] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Oss v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Oss v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 155

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    06 May 2022

Appeal Status

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

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