Mathieu v Higgins[2008] QSC 209

SUPREME COURT OF QUEENSLAND

[1] The applicant seeks a statutory order of review in relation to the second respondent’s decision of 4 March 2008 (“the decision”).

Background

[2] The applicant was, at the time of the conduct to which the decision related, employed as an Acute Care Paramedic by the Queensland Ambulance Service (“QAS”).

[3] On 5 October 2005, the applicant and a student paramedic (together, “the ambulance officers”) attended at the residential address of a person I shall identify as ‘P’. Upon arrival, they received information to the effect that P was a violent and potentially suicidal psychiatric patient. It was decided that P, who had reported having trouble breathing, should be moved to the Gold Coast Hospital. While the ambulance officers were walking P from his bedroom towards the ambulance, he collapsed. Subsequently, P was placed on a stretcher and conveyed to the Gold Coast Hospital where he died soon after.

[4] An autopsy later performed on P reported that the cause of his death was ischaemic heart disease due to coronary atherosclerosis. 

[5] For the bulk of the attendance at P’s residence, and the journey from the residence to the hospital, the student paramedic served as P’s primary caregiver.

[6] On 31 October 2005, the Department of Emergency Services commissioned an investigation report from Mr Jamie Townsend of Ashdale Integrity Solutions. This report ultimately concluded that the applicant had failed to demonstrate an appropriate standard of care in treating P but that there was not sufficient evidence available to sustain a conclusion that that the applicant’s conduct contributed to his death.

[7] On 14 December 2006, the applicant was issued with a “notice to show cause why disciplinary action should not be taken against you in accordance with the Queensland Ambulance Service (QAS) Discipline Policy”.

[8] This document provided:

“TAKE NOTICE that you are liable to disciplinary action pursuant to section 41 of the Ambulance Service Act 1991 and Section 20 of the Queensland Ambulance Service Discipline Policy, in that you are alleged to have engaged in misconduct:

MATTER ONE

That on or about 5 October 2005, your conduct was improper in that you:

PARTICULARS

Did not provide [P], a client of the Queensland Ambulance Service, incident number 8227361, with the appropriate standard of care.

MATTER TWO

That on or about 5 October 2005, your conduct was improper in that you:

PARTICULARS

Failed to appropriately supervise Student Paramedic Peter Turner, whilst attending [P], a client of the Queensland Ambulance Service, incident number 8227361.

LEGAL AUTHORITY

Section 41 of the Ambulance Service Act 1991; Sections 9(c), Section 10 and Section 20(b) of the Queensland Ambulance Service Discipline Policy.”

[9] By letter of 28 June 2007, the first respondent advised the applicant that matters 1 and 2 in the show-cause notice had been substantiated. This letter attached a copy of the disciplinary hearing report which explained the reasons for these findings. The hearing report set out the charges against the applicant, as well as the agreed and contentious facts. It concluded in the following terms:

“I consider Officer Mathieu’s standard of care and that of his student were clearly not appropriate.

I must now consider whether the conduct by Officer Mathieu amounts to misconduct.

I acknowledge Officer Mathieu’s duty of care to his own safety and that of his student. However, the nature of our work as paramedics requires a certain level of risk as we perform our core function.

I consider that Officer Mathieu’s lack of willingness to ascertain whether the patient had an organic cause to his distress was a total abrogation of his duty as a QAS Officer and did nothing to increase the chances of his patient’s survival. This is contrary to the mission of the Queensland Ambulance Service (QAS), “To improve the health, safety and well being of the community”.

I am therefore satisfied that Officer Mathieu’s conduct amounts to misconduct.”

[10] After taking further submissions as to sanction the first respondent imposed a penalty upon the applicant as follows:

“I order that you are redeployed to other employment with the QAS. Specifically, you will be redeployed to a PTO position (Pay Point 1). This sanction will apply for a minimum of 12 months after which you will be eligible to reapply for a Paramedic position. Any such application would need to be assessed on the basis of your merit.”

[11] On 10 September 2007, the applicant filed a “Notice of Appeal against Disciplinary Action”. There were eight separate grounds of appeal:

“1.That the investigation by the investigator engaged by the QAS is fundamentally flawed and the investigator did not have the appropriate experience or qualifications to conclude that the allegations against Mathieu had been substantiated.

2.That the QAS failed to engage an appropriately qualified person to scrutinize the investigator’s report and the QAS accepted the investigator’s report on the face of it.

3.That the QAS did not have the appropriate power pursuant to legislation in place at the time of the alleged incident that would allow it to bring disciplinary proceedings against Mathieu.

4. That the decision against Mathieu was so long delayed that it departed from the requirements of natural justice and procedural fairness.

5.That Mathieu as a QAS member was protected by the Ambulance Service Act in respect to liability relating to the incident to which he has now been disciplined.

6.That the QAS has failed to take into account all of the circumstances of the incident in making its decision that Mathieu’s conduct amounted to misconduct.

7.That the decision is so harsh and unreasonable that it has causes [sic] and continues to cause Mathieu serious financial hardship

8.That the findings as a whole against Mathieu by the QAS are so substantially flawed that the decision has failed to afford Mathieu natural justice and procedural fairness.”

[12] Pursuant to a delegation by the Public Service Commissioner under the Public Service Act 1996 (Qld), the second respondent heard the appeal on 23 November 2007.

[13] The second respondent’s decision of 4 March 2008 confirmed the first respondent’s decision. It determined:

“The discipline appeal of Jamie Mathieu, Advanced Care Paramedic, Queensland Ambulance Service, Department of Emergency Services against the findings of the Queensland Ambulance Service, Department of Emergency Services that he was liable to disciplinary action pursuant to section 41 of the Ambulance Service Act 1991 and Section 20 of the Queensland Ambulance Service Discipline Policy, and that he be redeployed to a PTO position (pay point 1) for a minimum of twelve months is DISMISSED and the decision of the agency is CONFIRMED.”

Judicial review application

[14] The applicant now seeks to have the decision of the second respondent reviewed. This application is made on three grounds. I will consider each in turn, but need firstly to consider the meaning of the term ‘misconduct’ for the purposes of this case. It is not possible to assess whether there is any evidence to support a finding of misconduct, or whether the decision was unreasonable, without understanding what ‘misconduct’ means in this context. This analysis necessarily begins with an assessment of the terms of the Queensland Ambulance Service Discipline Policy (“the policy”).

[15] The policy is issued under s 41 of the Ambulance Service Act 1991 (Qld) which allows the Commissioner to issue ‘codes of practice’ relating to “the functions, powers, discipline and appearance of service officers.”

[16] The objectives of the policy, as stated in s 5, include that it aims to:

“a.provide a structured, prompt and fair process for dealing with:

1. unsatisfactory performance;

2.unacceptable workplace behaviour;

3.misconduct; and

4.official misconduct.”

[17] The term ‘unacceptable workplace behaviour’ is defined at s 9 of the policy as:

“behaviour of an officer that adversely affects the effectiveness of the QAS and/or reflects adversely on the position held by the officer. Examples of unacceptable workplace behaviour include:

a. breach of QAS policy or procedure;

b. breach of QAS Code of Conduct;

c. misconduct;

d. official misconduct;

e. criminal activity;

f. refusal to obey a lawful and reasonable direction;

g. carelessness, incompetence or inefficiency; and/or

h. exposing the QAS to claims arising out of the foregoing”

[18] The term ‘misconduct’ is specifically defined in s 10(a) as “disgraceful or improper conduct in an official capacity”.

[19] Misconduct is then said to be a ground for discipline. In this respect s 20 provides:

“The QAS may discipline an officer if the delegate…is reasonably satisfied that the officer has:

a.     performed the officer’s duties carelessly, incompetently or inefficiently;

b.     been guilty of misconduct;

….”

[20] The applicant submitted that the word ‘misconduct’ involves something more than mere negligence, error of judgment or innocent mistake. Mr McLeod of counsel, who appeared for the applicant, referred to Pillai v Messiter (No.2)[1], in which Kirby P (as his Honour then was) addressed the meaning of the expression “misconduct in a professional respect” in the Medical Practitioners Act 1938 (NSW). His Honour said:

“But the 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 or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.”[2]

[21] Whilst it is undoubtedly true that caution should be exercised when applying the meaning given to a word within a particular legislative framework to that word in other contexts, I am nevertheless of the view that his Honour’s formulation is instructive in the present case. 

[22] In opposing the adoption of such a formulation, Mr Horneman-Wren of counsel attempted to persuade me that the inclusion of the term ‘improper conduct’ renders the definition of misconduct in s 10 somewhat less stringent than might ordinarily be expected.

[23] The expression ‘improper conduct’ is not further defined in the policy. The respondent took me to the High Court’s decision in R v Byrnes,[3] a case dealing with the breach of fiduciary obligations by company directors, in which Brennan, Deane, Toohey and Gaudron JJ said:

“Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances.”

[24] The term ‘misconduct’ as defined in s 10 of the policy should, the respondents submitted, be given a meaning which accords with this notion of ‘impropriety’.

[25] Despite the respondents’ submissions, I am not persuaded that the term ‘misconduct’ in the policy should be given such a broad construction. This is so for two reasons:

(a) It is not appropriate to rigidly separate the definition into its component parts; the words ‘disgraceful’ and ‘improper’ are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent. Rather, each term should be read as giving colour to the other.

(b)The definition must be read in context. ‘Misconduct’ is, in s 9 of the policy, listed as one form of ‘unacceptable workplace behaviour’. It is, in this provision, expressly separated from other forms of sub-optimal workplace behaviour such as ‘carelessness, incompetence or inefficiency’.

[26] These two considerations compel the conclusion 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.

[27] It is with this formulation of ‘misconduct’ in mind that I turn to consider the various grounds of review agitated by the applicants.

Ground 1 – No evidence

[28] The applicant seeks to have the decision of the second respondent reviewed on the basis that there was no “evidence or other material to justify the making of the decision”[4] that the applicant’s conduct constituted ‘misconduct’ as defined in s 10 of the policy.

[29] Section 24 of the Judicial Review Act 1991 (Qld) (“JRA”) restricts the circumstances in which it can be established that a decision was made without appropriate evidentiary grounding. It provides:

“The ground mentioned in sections 20(2)(h) and 21(2)(h) is not

to be taken to be made out—

(a) unless—

(i) the person who made, or proposed to make, the

decision was required by law to reach the decision

only if a particular matter was or is established; and

(ii)there was no evidence or other material (including

facts of which the person was or is entitled to take

notice) from which the person could or can

reasonably be satisfied that the matter was or is

established; or

(b) unless—

(i) the person who made, or proposes to make, the

decision based, or proposes to base, the decision on

the existence of a particular fact; and

(ii)the fact did not or does not exist.”

[30] The second respondent decided, under s 20 of the policy, to discipline the respondent for misconduct. Clearly, the applicant’s misconduct was a matter which had to be established for that decision to be made. It is therefore necessary to determine whether there was sufficient evidence before the second respondent to enable her to be reasonably satisfied that the applicant’s actions amounted to misconduct.

[31] In an attempt to buttress the findings of misconduct, the respondents referred to the statutory declaration of Dr Stephen Rashford. Dr Rashford’s statutory declaration is responsive to a statutory declaration of the student paramedic, Peter Turner, and also to a statutory declaration of a Dr John Carlyle. The latter of these statutory declarations essentially opined that the conduct of the applicant was “reasonable and appropriate in the circumstances”.

[32] Dr Rashford made several observations in relation to the applicant’s conduct. He was particularly critical of the applicant’s failure to administer a blood-glucose test and, perhaps more notably, of his failure to conduct a thorough reassessment of P’s condition following the pooling of vomit in his oxygen mask and/or his collapse while being transported to the ambulance. In sum, Dr Rashford was of the view that the conduct of the applicant and the student paramedic fell short of the expected standard of care of ambulance officers.

[33] In a similar vein, the respondents also drew my attention to an interview conducted with a Mr Tony Wain, Manager, South Easter Region, Queensland Ambulance Service. Mr Wain expressed some concerns with the preparation of the Ambulance Report Form (“ARF”) and reached a similar conclusion to Dr Rashford, specifically that the applicant was deficient in his clinical practice.

[34] Finally, the respondents drew attention to the evidence of Mr Colin Nash, the QAS Manager of Clinical Standards. Mr Nash stated that, by the time P’s collapse, the applicant should have taken responsibility for the primary care of the patient and concluded that the conduct of the applicant did not accord with the standard of care expected of QAS officers.

[35] It is not, of course, my role on a judicial review application to conduct an exercise involving the weighing of the opinions of Dr Rashford, Mr Wain, and Mr Nash as against the view of Dr Carlyle. Rather, I am required to determine whether there is any evidence or other material from which the second respondent could be reasonably satisfied that the applicant’s conduct amounted to misconduct.

[36] In doing so, I recognise that it was no doubt appropriate for the second respondent to accord significant weight to the views of these experts on account of their ‘particular expertise’ in the area of emergency medical care. I am not, however, persuaded that the evidence given by these experts is of such a character as to reasonably ground a finding of ‘misconduct’ as I construe the term. The evidence variously goes towards demonstrating ‘deficient’ clinical practice and a ‘failure’ to attain the ‘expected standard of care of ambulance officers’; it may well appropriately found a finding that the applicant exhibited a degree of carelessness, or even incompetence, but it does not go so far as to evince the deliberate departure from accepted standards, serious negligence, or abuse of privilege which would ordinarily be required in order to characterise the applicant’s actions as ‘misconduct’. 

[37] In those circumstances, I consider that the first ground of review advanced by the applicant is made out.

Ground 2 – failure to consider a relevant consideration

[38] The applicant also submitted that, in reaching its decision, the second respondent failed to take account of a relevant consideration[5], namely the possibility that (even if substantiated) the complaints in respect of the applicant’s conduct contained in the ‘notice to show cause’ set out in [9] above could not amount to misconduct.

[39] In the outline of submissions provided to the second respondent in support of his appeal the applicant stated:

“4.It is apparent from the definition of misconduct in the QASDP that Commissioner Higgins is erroneous in his finding that  misconduct is proven to his reasonable satisfaction, as the allegations against the Appellant do not fall into the two categories as defined as misconduct in the QASDP. In order to find that misconduct has occurred, there has to be a wilful failure of a serious nature, not a mistake or an error or a failure to check an ARF.”

[40] This outline also included a concluding statement to the effect that:

“The allegations made by the DES against the Appellant can not be substantiated as misconduct cannot be found on the evidence before the DES.”

[41] These statements squarely raised the issue of whether the appellant’s conduct could amount to misconduct. This issue was of significant relevance to the appeal. Failure to consider it would therefore constitute a reviewable error.[6] 

[42] In assessing whether there has been a failure to consider a relevant matter, I am keenly aware of “the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.[7] Nevertheless, in circumstances such as the present, a close reading of the reasons is required in order to properly ascertain whether the second respondent has, in fact, given consideration to the possibility that the complaints about the applicant’s conduct, even if substantiated, could not amount to misconduct.

[43] In argument before me, it was conceded by the respondents that the reasons do not attempt to further define ‘misconduct’ nor do they express reasons why the appellant’s conduct amounted to such. Indeed, the closest the reasons come to an explicit consideration of these issues is in paragraph [41], where it was said:

“The Tribunal does not accept the argument that the agency has failed to take into account all of the circumstances of the incident in making its decision that the appellant’s conduct amounted to misconduct or that the finding of misconduct was not open to the decision maker in this matter.”

[44] The respondents, however, asserted that by dealing substantively with the applicant’s contentions as to why his conduct was not misconduct the second respondent implicitly determined that his conduct amounted to misconduct. This, with respect, is unsatisfactory. In circumstances where, as happened here, the applicant challenged the meaning which had been ascribed to “misconduct” in the first respondent’s decision, the second respondent needed to define that term expressly and then address its application to the applicant’s actions. In failing to conduct such enquiries, the second respondent “effectively failed to determine the question raised for [her] decision”.[8] This failure may, in this case, alternately be characterised as “asking the wrong question” or “ignoring relevant material”.[9] Whichever terminology is adopted, it is clear that the exercise of the second respondent’s decision-making power was materially affected.[10]

[45] Accordingly, I am satisfied that the second respondent, by failing to expressly consider either the proper definition of the term ‘misconduct’ or the application of that term to the applicant’s conduct, made an error of law.

Ground 3 – unreasonableness

[46] Finally, the applicant submits that the decision in question was “so unreasonable that no reasonable decision maker could have made it”.[11] My earlier findings make it unnecessary for me to venture an opinion in this respect.

[47] I would, however, observe in passing that this case is one which may, in any event, better be answered by recourse to the second ground of review, namely, a failure to consider a relevant consideration, rather than unreasonableness in the Wednesbury sense. In making this comment I note the observations of Spigelman CJ in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources[12]:

“A challenge to the exercise of a statutory power on the basis of irrationality or unreasonableness requires the court to be conscious of the permissible scope of judicial review. The legality/merits dichotomy is at the heart of Australian administrative law and the boundary between the two is policed more rigorously in this country than appears to have become the case in recent years in other common law jurisdictions.”[13]

Orders

[48] In light of my findings in respects of grounds 1 and 2, there will be orders setting aside the second respondent’s decision and for remission of the matter for decision according to law, and for the respondents to pay the applicant’s costs. I will hear the parties as to the appropriate form of orders.