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Purcell v State of Queensland (Queensland Health)[2022] QIRC 291

Purcell v State of Queensland (Queensland Health)[2022] QIRC 291

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Purcell v State of Queensland (Queensland Health) [2022] QIRC 291

PARTIES:

Purcell, Moira

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/427

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

2 August 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

  1. The appeal is allowed.
  2. Ms Purcell's conduct in relation to Allegation 3 does not meet the definition of 'misconduct' in s 187(1)(b) and s 187(4)(a) of the Public Service Act 2008 (Qld).
  3. Allegation 4 is not substantiated.
  4. Additional Allegation 1 is set aside and the following allegation is substantiated in lieu thereof:

During her shift on Sunday 21 February 2021, Ms Purcell behaved inappropriately towards Patient 142124's daughter when she spoke to her in a rude way.

  1. Additional Allegation 3 is not substantiated.
  2. The decision appealed against is returned to the decision-maker with a copy of these reasons.
  3. The decision-maker is directed to reissue their decision to the appellant containing only the substantiated allegations I have found to be fair and reasonable, namely:
  1. (a)
    Allegation 1;
  2. (b)
    Allegation 3;
  3. (c)
    Additional Allegation 1 as substantiated by Order 4; and
  4. (d)
    Additional Allegation 2;

('the substantiated allegations').

  1. The decision-maker is further directed to specify the following in the reissued decision:
  1. (a)
    the standard or standards of the Code of Conduct for the Queensland Public Service the decision-maker finds the appellant contravened in respect of each of the substantiated allegations;
  2. (b)
    the section or sections of the Public Service Act 2008 (Qld) under which the decision-maker finds there are grounds to discipline the appellant in respect of each of the substantiated allegations; and
  3. (c)
    the decision-maker's reasons for determining the appellant contravened each of the specified standards and sections.
  1. The decision-maker is directed to reissue their decision within 21 days of these reasons.

CATCHWORDS:

PUBLIC SERVICE EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY appeal under s 197 of the Public Service Act 2008 (Qld) against decision substantiating six allegations against the appellant – where allegations related to inappropriate or offensive interactions with other staff members, patients and their families – whether the decision was fair and reasonable – decision set aside with directions

LEGISLATION AND

INSTRUMENTS:

Code of Conduct for the Queensland Public Service

Directive 13/20 – Discipline cls 5.1, 5.2, 8

Industrial Relations Act 2016 (Qld) s 562B

Public Service Act 2008 (Qld) ss 25, 187, 190, 197

Queensland Ambulance Service Disciplinary Policy

CASES:

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

Mathieu v Higgins & Anor [2008] QSC 209

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Purcell v Metro North Hospital and Health Service (Queensland Industrial Relations Commission, Thompson IC, 28 March 2019)

Reasons for Decision

  1. [1]
    Ms Moira Purcell is employed by the State of Queensland through Queensland Health ('the Department'), in the role of Registered Nurse (NG5) at the Caboolture Hospital.
  1. [2]
    In a decision letter dated 23 November 2021, Ms Angie Dobbrick, Executive Director Caboolture, Kilcoy and Woodford Clinical Directorate, substantiated several allegations in relation to Ms Purcell's conduct ('the Decision').
  2. [3]
    By appeal notice filed 14 December 2021, Ms Purcell appeals the decision under ch 7 pt 1 of the PS Act. Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]

Relevant Background

  1. [4]
    Ms Purcell has been employed by the Department for over 20 years as both a clinical and registered nurse.
  2. [5]
    In early 2019, the Department substantiated four allegations related to complaints made by patients regarding Ms Purcell's conduct. Ms Purcell successfully appealed that decision in this Commission, with the Member determining that the Department's findings were not reasonably open to be made on the evidence available.[4]
  3. [6]
    Ms Purcell subsequently brought further proceedings which resulted in her being transferred to the Emergency Department of Caboolture Hospital for a 'fresh start' in August 2019.
  4. [7]
    In late 2019, Ms Purcell was again the subject of allegations regarding her clinical and professional practice and patient safety. These allegations resulted in Ms Purcell being cautioned. Following her caution, Ms Purcell requested she be transferred to another ward. On 28 January 2020, Ms Purcell was transferred to Ward 3A which is a cardiac ward providing care for some of the hospital's most 'at risk' patients, as well as elderly patients.

Show Cause Process

  1. [8]
    On 3 March 2021, Ms Purcell was provided with a show cause letter dated 26 February 2022, inviting her to respond to four allegations regarding her conduct and interactions with other staff members. Those allegations were set out as follows:

Allegation 1

It is alleged that during your shift in Ward 3A on 12 October 2020 you attended a meeting with Ms Sheridan Hoffman, Nurse Unit Manager (NUM) where you behaved towards her in an aggressive and intimidating manner.

Allegation 2

It is alleged that during your shift in Ward 3A on 12 October 2020 you attended a meeting with Ms Hoffman, Nurse Unit Manager where you damaged her reputation by humiliating, belittling and making derogatory statements about her management ability in front of Ms Tracy Zammit, Nurse Educator.

Allegation 3

It is alleged that during your shift on 18 October 2020 in the hallway of Ward 3A, Caboolture Hospital you struck a fellow employee, [Nurse A].

Allegation 4

It is alleged that during your shift in Ward 3A on 18 October 2020 at approximately 21:00 hrs, you harassed [Nurse A], when you continued to discuss your actions relating to the incident detailed in Allegation 3 and follower her to the doctor's write up room.

  1. [9]
    Ms Purcell responded to the allegations, through her representative, on 26 March 2021. In respect of Allegations 1 and 2, Ms Purcell:
  • noted she did not have a support person present for the 12 October 2020 meeting and consequently requested that she be allowed to record the meeting;
  • accepted that she would not be allowed to record the meeting and agreed that the meeting should be postponed to allow her to obtain a support person, but noted Ms Sheridan Hoffman, Nurse Unit Manager ('NUM'), continued to raise concerns with Ms Purcell;
  • maintained she attempted to raise concerns with the manner in which Ms Hoffman had been providing her feedback, namely in public places such as corridors;
  • noted she believed she was raising her concerns in the appropriate forum, being in a private setting with her NUM, in accordance with a relationship charter which had been entered into between Ms Purcell and Ms Hoffman;
  • argued Ms Hoffman became defensive and refused to acknowledge her concerns;
  • accepted the conversation became 'fairly intense' and that she has a naturally loud voice, but denied she talked any louder than she ordinarily would in any other animated discussion; and
  • accepted Ms Hoffman may have tried to end the meeting, but Ms Purcell had persisted in trying to obtain assurances regarding how her NUM would provide her feedback in future.
  1. [10]
    In respect of Allegations 3 and 4, Ms Purcell:
  • denied being upset about an earlier interaction involving Nurse A;
  • denied the allegations but admitted to 'accidentally tapp[ing] [Nurse A] on the side of her head (very gently)' with a 'handover sheet folder (not a thick patient file)';
  • denied the incident involved a thick patient file or chart, describing the object she was carrying as a thin clipboard with a single piece of paper attached to it;
  • maintained the incident was not premeditated, and she had no malicious intent to hurt, upset or harm Nurse A;
  • stated she did not realise Nurse A was upset, believing a comment she made after the incident about Ms Purcell not liking her was 'part of the banter';
  • stated she became aware Nurse A was upset when another colleague informed her Nurse A had previously been physically assaulted by patients;
  • stated she immediately felt terrible about upsetting Nurse A, and went to speak to her out of concern and to apologise to her;
  • noted that, after going on her break, she again attempted to apologise to Nurse A;
  • denied she was attempting to harass or harm Nurse A by talking to her;
  • submitted the CCTV video footage, as opposed to the screenshots of the footage, supported her version of events; and
  • questioned the witness statements provided by her colleagues submitting they are inaccurate.
  1. [11]
    In July 2021, the Department again wrote to Ms Purcell detailing three new and additional allegations related to her conduct in the treatment of patients and their families ('the Additional Allegations'). The Additional Allegations were set out as follows:

[Additional] Allegation 1

It is alleged that during your shift on Sunday 21 February 2021, that [sic] you behaved inappropriately towards Patient 142124's wife, daughter, patients and other staff when you spoke to them in a rude and abusive way.

[Additional] Allegation 2

It is alleged that during your evening shift on Wednesday 17 March 2021 you behaved inappropriately towards Patient UR248048, when you left this patient in the shower for an extended period, left the bathroom door open in a mixed ward and spoke to her rudely.

[Additional] Allegation 3

It is alleged that during your evening shift on Wednesday, 24 March 2021 you behaved inappropriately towards Patient UR468788, when you placed a spoon 'in and down her mouth and throat so far, [sic] she vomited'.

  1. [12]
    Again, Ms Purcell responded through her representative, on 3 August 2021. In respect of Additional Allegation 1, Ms Purcell:
  • denied being rude to the patient's family or other staff;
  • maintained that her only interaction with the patient's daughter was to politely interrupt her to ask whether she could address the patient's complaints after Ms Purcell received her handover, to which the daughter agreed;
  • noted the allegation is supported by a file note made by the Acting NUM and questioned why it took a month for the Acting NUM to follow up the complaint with the patient's daughter, and why Ms Purcell was not informed of the complaint at the time;
  • noted her nursing partner, who was also responsible for the patient's care, did not provide a statement;
  • noted the allegation is supported by a statement from the Team Leader for a shift the following day and questioned why his statement had been relied upon in circumstances where he was not on shift at the time, did not witness the incident, and had made subjective comments unrelated to the incident;
  • submitted the comment about a coloured jug was an expression of excitement as she believed a suggestion she had made regarding their use had been endorsed; and
  • noted she was not provided with a signed patient feedback form and the file note relied upon was completed by a staff member, and not a patient.
  1. [13]
    In respect of Additional Allegation 2, Ms Purcell:
  • noted the shift was particularly busy and she had lodged a workload report form;
  • noted the patient had agreed and managed to bathe and dress the main part of her body on previous shifts, and said she would do the same on this occasion;
  • acknowledged leaving the patient unattended and stated she told the patient to press the call bell if she needed assistance;
  • submitted she returned to the patient as soon as she was able and assisted her with dressing and returning to her bed;
  • denied leaving the bathroom door open at any time;
  • noted the patient gave differing accounts of how long she was left unattended, namely 30 minutes and then 10 minutes;
  • submitted she had noted in her personal diary at the time that the patient had appeared disgruntled during her hospital stay, and Ms Purcell had overheard the patient on the phone complaining about various aspects of her treatment;
  • submitted another patient had corroborated the allegation because he was upset with Ms Purcell for asking him to take his phone off speaker late at night;
  • raised concerns regarding the timing of an email provided to her NUM concerning another colleague's recollection of the shift; and
  • noted no evidence had been produced to support the patient's comments that Ms Purcell is mean or a 'silent bully'.
  1. [14]
    In respect of Additional Allegation 3, Ms Purcell:
  • noted the patient was reluctant to eat and drink and required assistance to do so;
  • submitted she assisted the patient by putting her pureed food in a sipper cup and the patient was then able to feed herself with minimal assistance;
  • denied forcing a spoon down the patient's throat at any time;
  • submitted she went above and beyond to support this particular patient; and
  • noted she takes great pride in being a caring and professional nurse, and stated that the complaint greatly distressed and saddened her.
  1. [15]
    Ms Purcell was informed of the Decision during her shift on 23 November 2021. At the same time she was provided with a letter of suspension.

The Decision

  1. [16]
    The decision-maker ultimately determined that six of the seven allegations were substantiated on the balance of probabilities. The substantiated allegations were:

Allegation 1

It is alleged that during your shift in Ward 3A on 12 October 2020 you attended a meeting with Ms Sheridan Hoffman, Nurse Unit Manager (NUM) where you behaved towards her in an aggressive and intimidating manner.

Allegation 3

It is alleged that during your shift on 18 October 2020 in the hallway of Ward 3A, Caboolture Hospital you struck a fellow employee, [Nurse A].

Allegation 4

It is alleged that during your shift in Ward 3A on 18 October 2020 at approximately 21:00 hrs, you harassed [Nurse A], when you continued to discuss your actions relating to the incident detailed in Allegation 3 and follower her to the doctor's write up room.

[Additional] Allegation 1

It is alleged that during your shift on Sunday 21 February 2021, [sic] that you behaved inappropriately towards Patient 142124's wife, daughter, patients and other staff when you spoke to them in a rude and abusive way.

[Additional] Allegation 2

It is alleged that during your evening shift on Wednesday 17 March 2021 you behaved inappropriately towards Patient UR248048, when you left this patient in the shower for an extended period, and spoke to her rudely.

[Additional] Allegation 3

It is alleged that during your evening shift on Wednesday, 24 March 2021 you behaved inappropriately towards Patient UR468788, when you placed a spoon 'in and down her mouth and throat so far, [sic] she vomited'.

  1. [17]
    Attached to the Decision was a Statement of Reasons which set out the matters the decision-maker had regard to in deciding to substantiate the allegations.

Allegation 1 – 12 October 2020 Meeting

  1. [18]
    With respect to Allegation 1, the decision-maker:
  • acknowledged Ms Purcell's concerns she did not have a support person with her at the 12 October 2020 meeting, but noted the meeting had been organised two weeks prior and Ms Purcell was aware she could bring either a support person or union representative with her to the meeting;
  • acknowledged Ms Tracy Zammit, Nurse Educator, was not in a management role, but noted it was appropriate for her to attend the meeting having regard to its purpose and the fact that as a Nurse Educator she supports both NUMs and nursing staff across a range of educational and learning development activities;
  • noted significant weight and preference had been given to Ms Zammit's statement regarding the meeting;
  • determined it was reasonable for Ms Hoffman and Ms Zammit to refuse to allow the meeting to be recorded by Ms Purcell, as the request was unexpected and made them feel uncomfortable;
  • acknowledged the existence of the relationship charter between Ms Purcell and Ms Hoffman which allowed Ms Purcell to raise concerns with her, but noted that charter did not permit the aggressive, intimidating or inappropriate behaviour displayed by Ms Purcell;
  • noted Ms Purcell's attempt to raise concerns with Ms Hoffman regarding her providing Ms Purcell with feedback in public places;
  • accepted that, whenever possible, feedback should be provided discreetly and sensitively, but noted that feedback sometimes needs to be provided at the time an issue arises to ensure patient safety;
  • recounted comments made by Ms Zammit in her statement, including that she had found Ms Purcell's behaviour during the meeting intimidating;
  • recounted comments made by Ms Hoffman that Ms Purcell had made her feel 'small' and spoken over her during the meeting;
  • noted Ms Purcell's concerns that staff had 'recruited' complaints against her, both in her current role and in her previous role at another hospital, but explained that an independent audit of the complaints made against Ms Purcell had found this was not the case; and
  • rejected Ms Purcell's response that she was being assertive, passionate and communicating in a manner appropriate in her culture as a defence, finding that she was instead behaving in an aggressive and intimidating manner to Ms Hoffman.

Allegation 2

  1. [19]
    As reflected above, the decision-maker determined Allegation 2 was not substantiated and decided to take no further action in relation to this allegation.

Allegations 3 and 4 – Incident and Harassment involving Nurse A

  1. [20]
    With respect to Allegations 3 and 4, the decision-maker:
  • outlined an earlier interaction between Ms Purcell and Nurse A regarding turning off lights in the patients' room;
  • noted another allegation regarding similar behaviour to the earlier incident;
  • detailed the incident giving rise to the allegations, noting events captured on CCTV and comments made by Nurse A and a witness in their respective statements;
  • found that, having regard to the earlier interaction between Ms Purcell and Nurse A, Ms Purcell was upset with Nurse A;
  • noted Nurse A was standing with her back to Ms Purcell when she felt a 'pain and impact on her head';
  • noted Ms Purcell's explanation that, while gesturing with her hands and holding a folder, she accidentally and quickly tapped the side of Nurse A's head with the folder;
  • determined that, having reviewed the CCTV footage, Ms Purcell had deliberately raised her arm and struck Nurse A with the folder;
  • found Ms Purcell continued to approach Nurse A after the event to put forward her version of events, and this exacerbated Nurse A's distress; and
  • considered the ongoing approaches could reasonably be considered harassment, and Ms Purcell's actions showed a distinct lack of insight and awareness about the situation.

Additional Allegation 1 – Rude and Abusive Behaviour to a Patient

  1. [21]
    With respect to Additional Allegation 1, the decision-maker:
  • acknowledged Ms Purcell was allocated to care for the patient in a joint nursing partnership with another nurse, but noted she was allocated to care for that patient;
  • noted concerns were raised by the patient's daughter that Ms Purcell had been rude and abusive to the patient's daughter, the patient's wife and other nurses;
  • noted the complaint was confirmed when an Acting NUM contacted the patient's daughter to discuss the complaint, and the patient's daughter mentioned Ms Purcell by name and described her hair colour;
  • noted Ms Purcell's response that she recalled politely interrupting the patient's daughter to complete the patient handover, but found the patient's daughter had not perceived the interaction in this way; and
  • determined it was reasonable to expect the patient's relatives would be able to observe Ms Purcell's behaviour and interactions with others during her shift.

Additional Allegation 2 – Inappropriately Leaving a Patient Unattended

  1. [22]
    With respect to Additional Allegation 2, the decision-maker:
  • noted the patient raised concerns the day after the incident with two other nurses regarding the incident and Ms Purcell treating her in future;
  • noted other patients had raised concerns regarding Ms Purcell's behaviour during the shift;
  • acknowledged the patient gave differing accounts of how long she was left alone in the shower and questioned the accuracy of the patient's recollection, but noted the patient was sufficiently concerned over the incident to make a formal complaint;
  • acknowledged that part of the allegation, that the door to the bathroom had been left open in a mixed ward, was not raised at the time and this is something which would have been raised if it occurred;
  • acknowledged Ms Purcell's response that it had been a busy shift and she was required to attend to another patient which meant she was likely not in the vicinity to hear the patient's buzzer;
  • acknowledged Ms Purcell's response that she had nursed the patient before and the patient was capable of undertaking some of her personal care needs in the shower, but noted the patient recalled repeatedly pressing the buzzer for assistance; and
  • determined the evidence, including Ms Purcell's responses, supported the allegation the patient was left unattended for a period of time and Ms Purcell had failed to respond to her buzzer.
  1. [23]
    Although the decision-maker concluded Additional Allegation 2 was substantiated, I note that the allegation as substantiated in the decision letter itself, excluded the words: 'left the bathroom door open in a mixed ward'. Consequently, in fairness to Ms Purcell, I consider it more appropriate to reflect that the allegation as put to her was only partially substantiated.

Additional Allegation 3 – Inappropriate Feeding of a Patient

  1. [24]
    With respect to Additional Allegation 3, the decision-maker:
  • acknowledged Ms Purcell's response that she had used a feeder cup and supervised the patient feeding herself;
  • acknowledged Ms Purcell's denial of the incident, but noted the patient felt sufficiently scared to feel reluctant to provide further information and made particular reference to Ms Purcell's height and strength;
  • noted Ms Purcell cared for the patient alone and there were no other witnesses to the alleged incident;
  • noted a review was undertaken of the patient's previous visits to another hospital and found that no similar complaints had been made against staff at that hospital;
  • considered the complaint was similar in nature to other allegations made against Ms Purcell regarding her behaviour towards patients, namely being rude, abusive or acting in a bullying manner; and
  • found that there would be no reason why three different patients, on three separate days, with no apparent connection to each other and no history of making similar complaints would make false allegations of same or similar conduct against Ms Purcell.

Other Matters

  1. [25]
    The decision-maker also responded to concerns raised by Ms Purcell during her show cause responses as follows:

Other Matters:

In your response to the allegations, you raised concerns about process delays and some other matters which I will now respond to.

In March 2021, the Service became aware of a concerning complaint from Patient UR468788, alleging that you had out 'a spoon in and down her throat, so far, she vomited and now she is too scared to be in the hospital'. As this was considered a very serious allegation, there were duty of care considerations and due to the nature of the allegation, a corrupt conduct referral was required to be completed on this matter.

The Requirements for Reporting Corrupt Conduct Procedure (Attachment 3), states that "Once a report is made, ... supervisor/line manager must not approach the subject person of the allegations". For this reason, the Service was unable to provide you with any information at that time. However, all relevant information was provided to you, once the Assessment was completed and the Service was able to attend to this matter.

The primary duty of care consideration for the Service, was to ensure the health and safety of patients and employees was maintained during this process. Considering the nature of the allegation, careful consideration was also given to whether it would be safe for you to continue working shift work while [t]his process was being undertaken.

The decision to roster you on day shift (Monday to Friday) on a projected roster from 30 March 2021, was based on the belief that you remaining on a rotating shift roster until these matters were resolved, was an unacceptable risk to yourself and patients.

Another concern you raised related to patient concerns not being raised with you at the time they occurred. As previously stated, due to the ongoing and serous nature of concerns regarding your conduct; matters needed to be assessed to ascertain the most appropriate action required to address them.

I fully acknowledge the potential impacts these processes and timeframes have had on all parties involved. While these processes can take time to work through, it is necessary to ensure due process occurs, including you being afforded natural justice.

Grounds for Discipline

  1. [26]
    Having substantiated the six allegations, the decision-maker determined there were grounds to discipline Ms Purcell as follows:

[Allegations 1 and 4, and Additional Allegations 1, 2 and 3 are] grounds for discipline under Section 187(1)(g) of the Public Service Act because:

  • You 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 which states:

Principle 1 – Integrity and impartiality in that you failed to conduct yourself in a professional manner and failed to demonstrate respect for a patient.

[Allegation 3] is grounds for discipline under Section 187(1)(b) of the Public Service Act because:

  • Been guilty of misconduct.
  1. [27]
    In the Statement of Reasons, the decision-maker concluded:

I believe all of the substantiated allegations are very serious in nature; in particular the allegations that relate to you deliberately hitting a fellow nurse on the head and with those allegations involving poor treatment of our vulnerable patients.

In reviewing the patient complaints, it is apparent that there is an established pattern of inappropriate and disrespectful behaviour towards patients, their family members and other staff.

Overall, I have found your behaviour towards patients, their family and staff to be highly disrespectful and unprofessional and not in line with the Code of Conduct. It is considered completely unacceptable that as a Registered Nurse, you behaved in this manner while at work. I also find you have demonstrated a distinct lack of insight, remorse, personal responsibility and accountability for your actions.

In considering your overall conduct towards employees, patients and their relatives you have failed to demonstrate the expected standards of behaviour of a Registered Nurse. I am also very concerned about the way in which you treated [your NUM and Nurse A].

It is evident to me, based on all the materials I've considered, that there are considerable deficits in your conduct including particularly inappropriate and unprofessional treatment of patients, employees and others, The repeated pattern of this type of behaviour, clearly indicates that your personal values are incompatible with the values of Metro North Hospital and Health Service.

I have also carefully considered the level of risk to yourself, other staff, patients and their family, should you remain employed at Caboolture Hospital.

I have determined that you remaining in the role of Registered Nurse, poses an unacceptable risk to the safety, health and wellbeing of patients and employees at Caboolture Hospital.

Finally, your work performance and overall work history has been taken into account, as part of this process, and I note:

  1. 1.Your placement in the Emergency Department resulted in concerns raised by twenty (20) employees in 2020, resulting in your receiving a Caution about your workplace conduct, a learning contract and you were moved to Ward 3A. It is noted that the QNMU requested that the learning contract be changed to an enhanced PDP process, which in good faith was agreed to by the Service.
  1. [28]
    Having regard to the above, the decision-maker advised she was giving serious consideration to terminating Ms Purcell's employment.

Grounds of Appeal

  1. [29]
    Ms Purcell appeals on the following grounds:
  1. (a)
    the decision-maker was biased as a result of previous disciplinary matters raised and resolved with Ms Purcell; and
  2. (b)
    the proposed penalty is disproportionate to the allegations substantiated.

Relevant Principles

  1. [30]
    The PS Act relevantly provides:

187 Grounds for discipline

  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

...

  1. (b)
    been guilty of misconduct; or

...

  1. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.

...

  1. (4)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  1. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct

victimising another public service employee in the course of the other employee's employment in the public service

relevant standard of conduct, for a public service employee, means—

  1. (a)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. (b)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

...

190 Procedure for disciplinary action

In disciplining a public service employee or former public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.

  1. [31]
    Directive 13/20 – Discipline ('the Directive') relevantly provides:
  1. 8.Discipline process
  1. 8.1Section 190 of the PS Act provides that in disciplining a public service employee or former public service employee, a chief executive must comply with the PS Act, this directive, and the principles of natural justice.
  1. 8.2The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process.
  1. 8.3Show cause process for disciplinary finding
  1. (a)
    The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. (b)
    Written details of each allegation in clause 8.3(a) must include:
  1. (i)
    the allegation
  1. (ii)
    the particulars of the facts considered by the chief executive for the allegation
  1. (iii)
    the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. (c)
    A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  1. (d)
    The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  1. (e)
    If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
  1. 8.4Decision on grounds (disciplinary finding)
  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
  1. (b)
    The chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding.
  1. (c)
    For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  1. (d)
    The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
  1. (e)
    If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

Was the Decision Fair and Reasonable?

Allegation 1 – 12 October 2020 Meeting

  1. [32]
    Ms Purcell submits the substance of Allegation 1 was previously raised and addressed with her, at a local level, in November 2020.[5] As no further action or concerns were raised by her NUM, Ms Purcell states she understood the matter had been resolved.[6] She argues the meeting on 12 October 2020 must be understood in the context of its purpose, namely, Ms Purcell's relatively recent transfer to Ward 3A following a quashed disciplinary process and stop bullying application.[7]
  2. [33]
    Ms Purcell questions the decision-maker's reliance on the written statement of Ms Zammit who was also in attendance at the meeting, noting Allegation 2, which also involved Ms Zammit, was unsubstantiated.[8]
  3. [34]
    Although she accepts the discussion 'escalated' during the meeting, Ms Purcell denies having been aggressive or intimidating.[9] She also notes she did not have a support person attend the meeting with her.[10]
  4. [35]
    The Department submits the purpose of the meeting was to finalise a performance and development plan ('PDP') for Ms Purcell, however, it was postponed when Ms Purcell attended without a support person and requested to electronically record the meeting.[11] It submits that it was after Ms Hoffman decided to postpone the meeting that Ms Purcell's conduct became inappropriate.[12]
  5. [36]
    It submits the decision-maker's reliance on Ms Zammit's statement was explained in the Decision itself, and argues her reliance on that statement was not inappropriate as the statement related to both Allegation 1 and 2.[13]
  6. [37]
    In reply submissions, Ms Purcell reiterates her contention the decision-maker should not have relied on Ms Zammit's statement, noting that when she responded to Allegation 1, she responded to the concerns raised by Ms Hoffman, not those raised by Ms Zammit.[14]

Consideration – Allegation 1

  1. [38]
    Allegation 1 is that, during her shift in Ward 3A on 12 October 2020, Ms Purcell attended a meeting with Ms Hoffman, NUM, where she behaved in an aggressive and intimidating manner towards Ms Hoffman.
  2. [39]
    Although Ms Purcell maintains the behaviour which is the subject of Allegation 1 was raised and addressed through local management action, Ms Julie Lahey, Director of Nursing and Midwifery Services, wrote to Ms Purcell on 21 December 2020 advising the matter would be referred to the A/Executive Director, Caboolture, Kilcoy and Woodford Directorate for further consideration, following which further advice would be provided.[15]
  3. [40]
    Having regard to this correspondence, I accept the events which form the basis of Allegation 1 had not been resolved in November 2020 and that it was open for the Department to issue a formal show cause in relation to Ms Purcell's conduct in respect of the meeting with her NUM.
  4. [41]
    The purpose of the meeting held on 12 October 2020, which was organised two weeks earlier, was to finalise and put in place a PDP. It is not in contention the meeting was postponed to a later date so that Ms Purcell could arrange for a support person to be present, in the absence of an agreement from the other meeting attendees, for her to record the meeting.
  5. [42]
    Ms Zammit, Nurse Educator, was also in attendance at the meeting, for the purpose of contributing to the discussion about the PDP content and to make adjustments following feedback from both Ms Hoffman and Ms Purcell.
  6. [43]
    Both Ms Zammit and Ms Hoffman gave statements to the effect that when it was determined the meeting would not go ahead, Ms Purcell initiated a discussion about her concerns with Ms Hoffman. It appears her primary area of concern was the manner in which Ms Hoffman was providing feedback to Ms Purcell.
  7. [44]
    Ms Hoffman's evidence is that during these discussions Ms Purcell raised her voice, leant forward in her chair and spoke over her whenever she attempted to speak. Likewise, Ms Zammit observed Ms Purcell being quite loud, aggressive and abrasive in her communication. Ms Zammit characterised Ms Purcell's conduct as being unprofessional and inappropriate.
  8. [45]
    In the Statement of Reasons, the decision-maker noted:

... I do not consider … that you were being assertive, passionate and communicating in a way that is similar to how people of your culture communicate as a reasonable defence. I do not consider these to be mitigating reasons for your behaviour. There is sufficient evidence to support that you were behaving in an aggressive and intimidating manner towards Ms Hoffman.

  1. [46]
    In my view, it was open to the decision-maker, having regard to the complaint, the statements of Ms Hoffman and Ms Zammit and Ms Purcell's response, to find Ms Purcell did behave in the manner alleged by Ms Hoffman. On the material before the decisionmaker, there was nothing unfair or unreasonable about the conclusions she arrived at, in respect of Allegation 1.

Allegations 3 and 4 – Incident and Harassment involving Nurse A

  1. [47]
    Ms Purcell contends her actions in relation to Allegations 3 and 4 have been exaggerated and distorted by the Department showing bias against her.[16] Ms Purcell characterises her interaction with the other nurse as 'accidentally tapping her colleague on the head with a light folder in jest'.[17] She submits the CCTV footage shows the incident was over within a second.[18]
  2. [48]
    She disagrees with the Department's conclusion that her actions were not accidental, saying the decision-maker's language reveals bias.[19] She submits the interaction the subject of Allegation 3 was 'friendly banter' and the discussion giving rise to the interaction was being discussed in a joking manner.[20]
  3. [49]
    Further, she denies that her single attempt to speak with Nurse A after the event constitutes 'harassment', submitting this is a subjective view which is not supported by CCTV footage and witness statements.[21]
  4. [50]
    Ms Purcell argues the Department has shown little objectivity when considering the allegations, failing to consider her perspective.[22] She submits she apologised immediately to Nurse A, apologised again when she was made aware Nurse A was very upset, was genuinely remorseful and her attempt to discuss the matter later was only to offer support.[23]
  5. [51]
    Ms Purcell questions a witness statement relied on by the decision-maker, submitting that statement was made by a colleague who did not witness the event, and the statement is not supported by the CCTV footage.[24] Further, she submits the statement made by her Team Leader contradicts the statement made be her colleague.[25]
  6. [52]
    The Department denies having exaggerated or distorted the incident, submitting the CCTV footage does not support Ms Purcell's description of events.[26] It argues the CCTV footage demonstrates Ms Purcell struck her colleague with a 'substantial' folder, noting that a witness described the folder as being two to three centimetres thick.[27] Further, it submits that the fact that the incident was over quickly does not diminish its impact or the seriousness of Ms Purcell's conduct.[28]
  7. [53]
    Similarly, the Department argues nothing in the CCTV footage or witness statements contradicts the finding that Ms Purcell then harassed Nurse A in relation to the incident.[29] In this respect, the Department notes its disappointment and concern that Ms Purcell has downplayed the significant and ongoing affect her actions had on Nurse A.[30] Finally, the Department rejects the allegation of bias submitting that, given all the evidence available, the decision-maker's findings were not unreasonable.[31]
  8. [54]
    In reply submissions, Ms Purcell maintains the witness relied upon by the Department did not see the incident, but rather merely stated that she had heard a noise.[32] Consequently, Ms Purcell suggested collusion between Nurse A and the witness in making the complaint.[33]
  9. [55]
    Finally, Ms Purcell denies downplaying the incident, noting her comments were merely repeating what she had been told by another colleague.[34]

Consideration – Allegation 3

  1. [56]
    Allegation 3 concerns a complaint that, during her shift on 18 October 2019, while in the hallway of Ward 3A at the Caboolture Hospital, Ms Purcell struck a fellow employee, Nurse A.
  2. [57]
    In the Statement of Reasons substantiating Allegation 3, the decision-maker noted:

On the basis of [Nurse A] and Ms Lewators's statements, it can be established that you were unhappy with [Nurse A's] actions of consenting to patient requests to turn the patient room lights off early. Your actions in turning off the hallway lights at 8.37pm (earlier than required as work was still being performed in the corridor), occurred directly after this interaction and clearly appeared to be retaliation for what [Nurse A] has done. It is noted there is a similar allegation of similar behaviour (detailed in Additional Allegation 2), when Patient UR248048 stated after your discussion with a non-compliant patient (Bed 28), that you became annoyed at their actions and as a result you immediately turned off the lights in the room and closed the curtains around the patient cubicles.

You have explained that while making hand gestures about the light situation, while holding your folder, you accidentally and very quickly touched or tapped the side of [Nurse A's] head with the folder.

In reviewing the CCTV footage relating to this incident, it is clear you raised your arm and deliberately struck [Nurse A] on her head with the file you were carrying. Your statement that the contact was an accident is not supported by the CCTV evidence.

  1. [58]
    Within her response, Ms Purcell denies the allegation but admits that in talking to and pointing in the direction of Nurse A, she accidentally tapped the folder on side of Nurse A's head.
  2. [59]
    Although I consider it was open to the decision-maker, having regard to the complaint and Ms Purcell's response, to conclude on the balance of probabilities, that Ms Purcell struck Nurse A on the side of the head with a folder, I do not think it was fair and reasonable for the decision-maker to conclude the incident is grounds for misconduct.
  3. [60]
    Section 187(4) of the PS Act defines misconduct as 'inappropriate or improper conduct in an official capacity'. However, the PS Act does not provide guidance as to what is meant by 'inappropriate or improper conduct'.
  4. [61]
    In Pillai v Messiter (No 2),[35] Kirby P (as his Honour then was), observed:31

... [T]he statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[36]

  1. [62]
    In Mathieu v Higgins & Anor,[37] Daubney J considered cl 10(a) of the Queensland Ambulance Service Disciplinary Policy ('the QAS Policy'). The QAS Policy defined 'misconduct' as 'disgraceful or improper conduct in an official capacity'.
  2. [63]
    When considering cl 10(a) of the QAS Policy, Daubney J was of the view it was not appropriate to rigidly separate the definition into its component parts.[38] Instead, he determined that each term should be read as giving colour to the other.[39] His Honour then held that:

... 'misconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.[40]

  1. [64]
    The decision-maker concluded Ms Purcell deliberately struck Nurse A on the side of the head because she was unhappy that Nurse A had consented to patient requests to turn out the ward lights.
  2. [65]
    The difficulty I have with the decision-maker's conclusions is that it is not entirely clear, having regard to the statements provided to the Commission, whether it was Ms Purcell's frustration about the lights being turned off or some other reason that led to her hitting Nurse A with the folder.
  3. [66]
    Although I consider Ms Purcell's actions were entirely unacceptable, I am not persuaded she intentionally set out to harm Nurse A, nor does it appear on the materials that she was entirely indifferent to Nurse A's reaction. In those circumstances, I consider her actions fall short of the threshold for misconduct.

Consideration – Allegation 4

  1. [67]
    Allegation 4 concerns Ms Purcell approaching Nurse A approximately fifteen minutes after hitting her with the folder and the allegation Ms Purcell harassed Nurse A when she continued to discuss the incident. This involved Ms Purcell following Nurse A to another room, despite being made aware of her distress.
  2. [68]
    Ms Purcell contends that, after being told she had upset Nurse A, she walked to the other room out of concern for Nurse A where she subsequently apologised and explained there was no malice in her actions.
  3. [69]
    According to Ms Purcell, she told Nurse A she had only been joking and had not meant to touch her head. In response, Nurse A advised Ms Purcell she was unable to view the incident as a joke.
  4. [70]
    In the Statement of Reasons, the decision-maker concluded Ms Purcell's approaches and interaction with Nurse A after the incident highlighted a lack of insight and awareness about the situation and a failure to clearly read social-emotional cues. She considered it would have been reasonable for Ms Purcell to give Nurse A time to recover and regroup and that it had been necessary for another nurse to intervene and ask Ms Purcell to leave Nurse A alone.
  5. [71]
    Having regard to the complaint, the statements provided to the Commission and Ms Purcell's response, I do not think it was fair and reasonable for Ms Purcell's conduct to be characterised as harassment.
  6. [72]
    Although I consider it would have been reasonable for the decision-maker to conclude Ms Purcell had upset Nurse A when she continued to discuss her actions relating to the incident detailed in Allegation 3, on my reading of the materials, there is insufficient evidence to support a conclusion Ms Purcell was intimidating or pestering Nurse A to such an extent that her behaviour could be defined as harassment.
  7. [73]
    For the above reasons, it was not fair and reasonable for the decision-maker to conclude that Ms Purcell harassed Nurse A, and subsequently substantiate the allegation, when she continued to discuss her actions in relation to Allegation 3.

Additional Allegation 1 – Rude and Abusive Behaviour to a Patient

  1. [74]
    Ms Purcell contends she was not afforded natural justice or procedural fairness in relation to Additional Allegation 1.[41] She argues the allegation lacks specifics, and consequently, she could only recount her dealings with the family and had no recollection of being rude.[42] Rather, she maintains she was professional, courteous and polite in all her dealings.[43]
  2. [75]
    Further, Ms Purcell argues the investigation was slow and lacked integrity.[44] In this respect she submits no statements were provided by the other staff present during her handover, including her nursing partner who was also responsible for the subject patient.[45]
  3. [76]
    The Department contends that to accept that the allegations regarding patient care have no basis, is to conclude that the complainants and witnesses have conspired to make similar or like complaints against Ms Purcell.[46] It submits none of the evidence gathered, which included statements and patient histories, suggests the complaints were anything other than genuine.[47] The Department otherwise relies on the reasons provided in the Decision substantiating the allegations.[48]
  4. [77]
    In reply submissions, Ms Purcell submits the Department has failed to appropriately acknowledge that patients in Ward 3A often have diminished capacity.[49] She submits she has witnessed patients discuss their grievances, and build on each other's ill feelings to generate complaints.[50] She argues this explains the similar themes raised in the complaints made against her, and notes the complaints were made on unsigned patient feedback forms.[51]
  5. [78]
    Further, Ms Purcell submits some of the complaints relate to incidents which did not involve her, but to which she responded.[52] Consequently, she argues she has been 'singled out' and targeted for upholding patient safety standards and adhering to hospital policy and procedure.[53]

Consideration – Additional Allegation 1

  1. [79]
    This allegation concerns a shift undertaken by Ms Purcell on 21 February 2021 where it is alleged she behaved inappropriately towards Patient 142124's wife, daughter, other patients and staff when she spoke to them in a rude and abusive way. Patient 142124's daughter subsequently made a complaint about Ms Purcell's conduct.
  2. [80]
    The complaint was followed up by Acting NUM, Ms Vanessa Tarlinton, sometime later whereupon the daughter described Ms Purcell as being rude and abusive in her tone towards the patient's wife, herself and other nurses. It is not in contention that details of Additional Allegation 1 were included within a show cause notice dated 8 July 2021. Ms Purcell was provided with a copy of the relevant Riskman report and a file note prepared by Ms Tarlinton setting out the details of a discussion between herself and Patient 142124's daughter in respect of the complaint.
  3. [81]
    Ms Purcell denies being rude to the patient's wife, daughter and other nurses during the shift. In her show cause response she questioned the quality of the Riskman report and suggests the family had raised other complaints.
  4. [82]
    Although I consider it was open to the decision-maker to conclude Ms Purcell was rude to Patient 142124's daughter, the context in which Ms Purcell is alleged to have behaved inappropriately towards Patient 142124's wife, other patients and staff has not been particularised. Nor has any evidence about any offence taken by the patient's wife, other patients or staff been provided to Ms Purcell.
  5. [83]
    Consequently, although I consider it was fair and reasonable to conclude Ms Purcell behaved inappropriately to Patient 142124's daughter when she spoke to her in a rude manner, for the above reasons, it was not reasonable to conclude the behaviour extended to the patient's wife, other patients or staff, nor is there sufficient evidence to support a conclusion Ms Purcell was abusive.

Additional Allegation 2 – Inappropriately Leaving a Patient Unattended

  1. [84]
    Ms Purcell denies having left the patient in the shower for an extended period.[54] She notes the Department concedes there was a significant difference in the time the patient stated she was left alone, as opposed to the time stated by the nurse when escalating the complaint.[55] Further, Ms Purcell submits regard should be had to her entire response to the allegation, including the requirement for her to attend to another patient requiring chest pain management.[56]
  2. [85]
    In any event, Ms Purcell submits she was working in a practicing partnership meaning her partner on shift and team leader had equal responsibility for answering the patient's calls.[57] This was particularly so, she submits, because they were aware of the other patient requiring assistance.[58] Finally, Ms Purcell contends there is no evidence to support the bathroom door was left open.[59]
  3. [86]
    The Department relies on the submissions set out at [76] above, namely, that to accept Ms Purcell's submissions is to accept collusion or dishonesty on the part of the patient and other staff.

Consideration – Additional Allegation 2

  1. [87]
    Additional Allegation 2 concerns Ms Purcell leaving a patient in the shower for an extended period of time and speaking to them rudely during her shift in Ward 3A on 17 March 2021.
  2. [88]
    The decision-maker considered that the information provided to her about the incident supported a conclusion Ms Purcell left the patient unattended for a period of time and failed to respond to repeated buzzer calls for assistance.
  3. [89]
    On 18 March 2021, one of Ms Purcell's colleagues escalated concerns made by two of her patients regarding Ms Purcell's treatment of one of the patients. In particular, the complaint alleged the patient was left in the shower unattended for a period of approximately 30 minutes, notwithstanding the patient had repeatedly pressed the buzzer.
  4. [90]
    A second nurse, in an email dated 14 June 2021, set out her recollection of a patient complaint made on 18 March 2021. The same patient advised she had been left unattended in the shower for an extended period of time. Moreover, that Ms Purcell had ignored her when she later told the nurse she felt unsafe. The patient described Ms Purcell as a bully.
  5. [91]
    A second patient maintained he had overheard the conversation between Ms Purcell and the complainant, describing the way she treated the patient as being 'horrendous'. Both patients were offered a patient feedback form to complete.
  6. [92]
    An undated patient feedback follow-up form completed by Ms Kym Ball, Patient Liaison Officer, sought feedback from the complainant. When pressed for further information about the shower incident the complainant noted, on reflection, that her time in the shower was 'probably 10 minutes', instead of the 30 minutes originally noted and went further with her complaint, giving an account of Ms Purcell turning off the lights and closing the curtains after becoming annoyed with a comment made by one of the other patients.
  7. [93]
    In the Statement of Reasons, the decision-maker observed:

In reviewing the information available, you left the patient alone in the shower for a period of time to attend to other patients, during what you referred to as an extremely busy shift. In this context it is likely you were not in close vicinity to hear the buzzer and attending to other patients caused her to feel 'unsafe' in that situation.

  1. [94]
    Although the decision-maker acknowledged the difference in the times noted by the patient when Ms Ball sought further information in relation to the complaint, she observed that the patient was sufficiently concerned over the incident to raise the complaint as a specific issue.
  2. [95]
    The decision-maker considered Additional Allegation 2 was likely to have occurred and was therefore substantiated.
  3. [96]
    While it is entirely possible the shift was busy, I consider it was open to the decisionmaker, having regard to the complaint, the recollection of the other two nurses and Ms Purcell's response, to conclude it was likely Ms Purcell did behave in the way as alleged by the patient. On the material before the decision-maker, there was nothing unfair or unreasonable in the conclusion she came to about this allegation.

Additional Allegation 3 – Inappropriate Feeding of a Patient

  1. [97]
    Ms Purcell denies Additional Allegation 3 occurred, submitting there are no circumstances in which she would ever force a spoon down a patient's throat.[60] She notes the patient was malnourished and not of sound mind, and submits she was saddened by the complaint as she had provided extended care for the patient.[61] Finally, she submits she was professional and not rude in her other dealings, and notes the allegation fails to particularise how she was perceived as rude.[62]
  2. [98]
    The Department relies on the submissions set out at [76] above, namely, that accepting Ms Purcell's submissions is to accept the patient falsified her complaint.

Consideration – Additional Allegation 3

  1. [99]
    Additional Allegation 3 concerns an incident whereby it is alleged Ms Purcell behaved inappropriately when she placed a spoon 'in and down [a patient's] mouth and throat so far, she vomited.'
  2. [100]
    In an email dated 26 March 2021, a colleague of Ms Purcell noted the complainant had stated 'please do not let the nurse from last night look after me'. At the time, the patient was unable to articulate the reasons for her request.
  3. [101]
    A file note prepared by Ms Tarlinton on 25 March 2021 recorded the following details:
  • Patient told several staff that she did not want yesterday evening's staff member looking after her again.
  • Staff want [sic] to TL who came to A/NUM as she was unsure about discussing details. A/NUM went to talk with the patient and offer apologies for feeling not cared for and 'scared'.
  • Patient stated that she had the spoon in and down her mouth and throat so far, she vomited and she it [sic] now too scared to be in the hospital. That she (the nurse) was so big and strong. Patient was apprehensive to discuss any further information as 'too scared'...[63]
  1. [102]
    In her response, Ms Purcell noted the patient required full assistance in drinking her resource protein drinks, eating snacks and eating her main meal. She observed the patient required much coaxing and encouragement to eat but was happy to feed herself from a sipper cup.
  2. [103]
    Ms Purcell denies forcing a spoon down the patient's throat and maintains she placed the patient's pureed main meal in a feeder cup from which the patient fed herself.
  3. [104]
    In the Statement of Reasons, the decision-maker acknowledged Ms Purcell denied forcing a spoon down the patient's throat, but observed 'this patient was sufficiently scared, (making particular reference to your height and strength) to feel reluctant to provide further details beyond her original allegation'.
  4. [105]
    The decision-maker concluded her reasoning in the following way:

In reviewing all the information relating to Allegations 1,2 and 3; I note the complaints are similar in nature regarding your behaviour towards patients namely that you were being rude, abusive and bullying in nature. Patients in Allegations 2 and 3 specifically asked that you not nurse them again and expressed fear of reprisal for raising their concerns. In Allegation 2 you were observed by another patient as treating Patient UR248048 'horrendously'. I also undertook a review of Patient UR468788's (Allegation 3) previous visits to the Redcliffe Hospital and found no similar complaints having been made by her against Metro North staff. I can find no reason why three different patients, on three separate days with no apparent connection to each other, and with no history of making similar complaints would make false allegations of same or similar conduct against you.

  1. [106]
    While it is clear from the materials that over the course of 2020 and 2021 multiple patient complaints, in addition to those set out above, have been made about Ms Purcell in respect of behaviours that would most likely be characterised as rude, abrasive or inappropriate, I do not consider it was fair and reasonable for the decision-maker to substantiate Additional Allegation 3.
  2. [107]
    Although I accept the patient more than likely had a negative interaction with Ms Purcell, and it was possibly related to her attempts to coax the patient into eating in circumstances where the patient was malnourished, unwell and uninterested in eating, Ms Purcell's outright denial of the allegation and her detailed explanation in respect of the care she provided to the patient has raised some uncertainty, in my view, as to whether the events complained of occurred in the manner in which they were described.
  3. [108]
    For these reasons, it was not fair and reasonable for the decision-maker to substantiate Additional Allegation 3.

Historical Bias & Other Matters

  1. [109]
    Ms Purcell contends the Department was biased and prejudiced by historical matters regarding her conduct in previous positions.[64] She notes the decision-maker refers to Ms Purcell's previous role in the Emergency Department where a number of complaints were raised with her, resulting in a caution but no formal disciplinary outcome.[65] Ms Purcell states that, in her view, these complaints were also raised due to a historical bias from her time at the Prince Charles Hospital.[66]
  2. [110]
    She contends the decision-maker had a predetermined view which was unfair.[67] In this respect, she notes the decision-maker wrote to her representatives, the Queensland Nurses and Midwives' Union, on 6 August 2021 and referred to consistent feedback and complaints about Ms Purcell.[68] She argues this shows clear bias against Ms Purcell, particularly as the decision-maker had not yet made the decision the subject of this appeal.[69] Consequently, she submits the relationship charter between the Department and herself, and the management and employment principles under the PS Act have not been respected.[70]
  3. [111]
    Ms Purcell contends this bias includes the Department's ongoing refusal to accept or acknowledge her physical statue, straight talking personality and culturally different communication style.[71] In addition, Ms Purcell submits her union involvement has been 'frowned upon' by the Department and has contributed to the Department's bias against her.[72]
  4. [112]
    She submits she lodged workload forms for the shifts relating to the additional allegations and her high workload which have not been acknowledged or given appropriate weight.[73] In reply submissions, Ms Purcell clarifies that it is a difficult time for health care providers and heightened emotional states have led to an increase in patient complaints.[74]
  5. [113]
    Finally, having regard to the Department's view regarding the allegations, Ms Purcell questions why, if she was deemed to be a serious risk to patients, she was allowed to continue nursing from March 2021.[75]
  6. [114]
    The Department rejects any assertion of bias, submitting the decision-maker considered all the evidence, including Ms Purcell's responses, and detailed her reasons.[76]
  7. [115]
    In respect of its decision to continue rostering Ms Purcell, the Department submits she was moved to a Monday to Friday, day shift roster to enable supervision by senior or experienced nurses.[77]

Consideration – Historical Bias & Other Matters

  1. [116]
    Clause 5.1 of the Directive provides that where a work performance matter arises that may constitute a ground for discipline under s 187 of the PS Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess, amongst other elements, the seriousness of the employee's personal conduct and/or work performance, subject to cl 5.2. In forming a view about the seriousness of an employee's personal conduct and or work performance under cl 5.1(a) the chief executive is required to consider:
  1. (a)
    whether there are recent previous and/or repeated instances of inappropriate conduct from the employee, and management action has recently been taken for similar conduct;
  1. (b)
    the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector;
  2. (c)
    whether the alleged conduct is reasonably suspected to have caused actual harm, or a risk to the health and safety of employees, or other people; and
  3. (d)
    the nature of the alleged conduct, including what the most serious disciplinary outcome may be for conduct of this nature.
  1. [117]
    It is not in contention that Ms Purcell previously received a caution in respect of her conduct within the Emergency Department at the Caboolture Hospital. Likewise, having regard to the materials filed in respect of this appeal, it is clear that other patient complaints, separate to those which form the basis of the allegations within this appeal, have been made in respect of Ms Purcell.
  2. [118]
    Separately, in or around February 2020, it was necessary for Ms Purcell to enter into a relationship charter between herself and Ms Hoffman, her NUM, which established a set of objectives towards which both Ms Purcell and her NUM agreed to work towards.
  3. [119]
    For Ms Purcell's part, the objectives included:
  • being mindful of personal boundaries and speech patterns when under pressure; and
  • learning about emotional intelligence and being self and socially aware.
  1. [120]
    In my view, it was not unreasonable for the Department to have regard to prior complaints or instances of poor performance or conduct in respect of Ms Purcell when determining how best to respond to complaints that had been made and/or whether or not management action was likely to resolve the issues that had arisen.
  2. [121]
    Clause 8.3 of the Directive provides that a chief executive must provide an employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation.
  3. [122]
    Although it is the case that I have found it was not fair and reasonable for the decisionmaker to substantiate Allegation 4, Additional Allegation 1 (in so far as it relates to persons other than the patient's daughter) and Additional Allegation 3 for the reasons set out above, I am not persuaded the Department has been biased in its consideration of the matters which are the subject of this appeal.

Conclusion

  1. [123]
    Pursuant to s 194(1)(eb) of the PS Act, an appeal may be made against a decision a public service employee believes is unfair and unreasonable.
  2. [124]
    Ms Purcell maintains the Decision was unfair and unreasonable.
  3. [125]
    For the reasons given above, the Decision was not fair and reasonable in so far as it substantiated Allegation 4 and Additional Allegations 1 and 3, and in so far as it determined Ms Purcell's conduct amounted to misconduct in respect of Allegation 3.
  4. [126]
    However, the Decision was otherwise fair and reasonable in so far as it substantiated Allegations 1 and 3 and Additional Allegation 2, and in terms of providing Ms Purcell natural justice and an unbiased decision-maker throughout the process.

Orders

  1. [127]
    I make the following orders:
    1. The appeal is allowed.
    2. Ms Purcell's conduct in relation to Allegation 3 does not meet the definition of 'misconduct' in s 187(1)(b) and s 187(4)(a) of the Public Service Act 2008 (Qld).
    3. Allegation 4 is not substantiated.
    4. Additional Allegation 1 is set aside and the following allegation is substantiated in lieu thereof:

During her shift on Sunday 21 February 2021, Ms Purcell behaved inappropriately towards Patient 142124's daughter when she spoke to her in a rude way.

  1. Additional Allegation 3 is not substantiated.
  2. The decision appealed against is returned to the decision-maker with a copy of these reasons.
  3. The decision-maker is directed to reissue their decision to the appellant containing only the substantiated allegations I have found to be fair and reasonable, namely:
  1. (a)
    Allegation 1;
  2. (b)
    Allegation 3;
  3. (c)
    Additional Allegation 1 as substantiated by Order 4; and
  4. (d)
    Additional Allegation 2;

('the substantiated allegations').

  1. The decision-maker is further directed to specify the following in the reissued decision:
  1. (a)
    the standard or standards of the Code of Conduct for the Queensland Public Service the decision-maker finds the appellant contravened in respect of each of the substantiated allegations;
  2. (b)
    the section or sections of the Public Service Act 2008 (Qld) under which the decision-maker finds there are grounds to discipline the appellant in respect of each of the substantiated allegations; and
  3. (c)
    the decision-maker's reasons for determining the appellant contravened each of the specified standards and sections.
  1. The decision-maker is directed to reissue their decision within 21 days of these reasons.

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[3] Industrial Relations Act 2016 (Qld) s 562B(3).

[4] Purcell v Metro North Hospital and Health Service (Queensland Industrial Relations Commission, Thompson IC, 28 March 2019).

[5] Ms Purcell's submissions filed 7 January 2022, [2].

[6] Ibid.

[7] Ibid [3].

[8] Ibid [5]-[6].

[9] Ibid [4].

[10] Ibid [6].

[11] Department's submissions filed 28 January 2022, [14].

[12] Ibid [15].

[13] Ibid [16]-[17].

[14] Ms Purcell's reply submissions filed 11 February 2022, [3].

[15] Department's submissions filed 28 January 2022, Attachment MN-3.

[16] Ms Purcell's submissions filed 7 January 2022, [7], [14].

[17] Ibid [7].

[18] Ibid [8].

[19] Ibid [13].

[20] Ibid.

[21] Ibid [13]-[14].

[22] Ibid [9].

[23] Ibid [9]-[10].

[24] Ibid [11]-[12].

[25] Ibid [11].

[26] Department's submissions filed 28 January 2022, [19].

[27] Ibid [22].

[28] Ibid [20].

[29] Ibid [24].

[30] Ibid [21].

[31] Ibid [23].

[32] Ms Purcell's reply submissions filed 11 February 2022, [5].

[33] Ibid.

[34] Ibid [7].

[35] (1989) 16 NSWLR 197.

[36] Ibid 200.

[37] [2008] QSC 209.

[38] Ibid [25(a)].

[39] Ibid.

[40] Ibid [26].

[41] Ms Purcell's submissions filed 7 January 2022, [15], [17].

[42] Ibid [16].

[43] Ibid [15].

[44] Ibid [17].

[45] Ibid.

[46] Department's submissions filed 28 January 2022, [25].

[47] Ibid [26].

[48] Ibid [27]; citing Attachment 1 to the decision letter dated 23 November 2021.

[49] Ms Purcell's reply submissions filed 11 February 2022, [9].

[50] Ibid [10].

[51] Ibid.

[52] Ibid [11].

[53] Ibid.

[54] Ms Purcell's submissions filed 7 January 2022, [19].

[55] Ibid [21].

[56] Ibid [19].

[57] Ibid [20].

[58] Ibid.

[59] Ibid [21].

[60] Ms Purcell's submissions filed 7 January 2022, [22].

[61] Ibid [23].

[62] Ibid [24].

[63] Department's submissions filed 28 January 2022, Attachment MN-6.

[64] Ms Purcell's submissions filed 7 January 2022, [27].

[65] Ibid [28].

[66] Ibid.

[67] Ibid [31].

[68] Ibid [29].

[69] Ibid.

[70] Ibid; citing Public Service Act 2008 (Qld) s 25.

[71] Ibid [33]; Ms Purcell's reply submissions filed 11 February 2022, [18].

[72] Ms Purcell's submissions filed 7 January 2022, [33]; Ms Purcell's reply submissions filed 11 February 2022, [14].

[73] Ms Purcell's submissions filed 7 January 2022, [32]; Ms Purcell's reply submissions filed 11 February 2022, [12].

[74] Ms Purcell's reply submissions filed 11 February 2022, [13].

[75] Ms Purcell's submissions filed 7 January 2022, [30].

[76] Department's submissions filed 28 January 2022, [28].

[77] Ibid [29]-[30].

Close

Editorial Notes

  • Published Case Name:

    Purcell v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Purcell v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 291

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    02 Aug 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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