Chen v State of Queensland (Queensland Health) [2021] QIRC 249

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Chen v State of Queensland (Queensland Health) [2021] QIRC 249 PARTIES: Chen, Victor (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2020/224 PROCEEDING: Public Service Appeal – Disciplinary Decision DELIVERED ON: 23 July 2021 MEMBER: HEARD AT: Knight IC On the papers ORDERS: 1. The appeal is allowed. 2. The disciplinary penalty is set aside. 3. The decision that Dr Chen's conduct does not meet the threshold for misconduct under s 187(1)(b) and s 187(4)(a) of the Public Service Act 2008 (Qld) is substituted in lieu thereof. 4. The matter is returned to the decision-maker to undertake a fresh show cause process only in relation to the disciplinary penalty, with the following directions: -- 1 of 17 -- 2 (a) Dr Chen be afforded the opportunity to show cause, in writing, within fourteen days of the fresh show cause notice, why he should not be disciplined in relation to Allegation Two pursuant to s 187(1)(f)(ii) of the Public Service Act 2008 (Qld). (b) The decision-maker must have regard to the earlier substantiation of Allegation One and the findings set out in this decision. CATCHWORDS: PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal against a disciplinary penalty under s 197 of the Public Service Act 2008 (Qld) – where two allegations substantiated – whether conduct meets the threshold of misconduct under s 187 of the Public Service Act 2008 (Qld) – appeal allowed LEGISLATION AND INSTRUMENTS: Code of Conduct for the Queensland Public Service cl 15 Directive 02/17 – Managing employee complaints Public Service Act 2008 (Qld) (as in force from 31 August 2020) ss 187, 188A, 197, 201 Public Service and Other Legislation Amendment Act 2020 (Qld) Queensland Health Human Resources Policy E10 – Discipline CASES: Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Mathieu v Higgins & Anor [2008] QSC 209 -- 2 of 17 -- 3 Page v John Thompson and Lesley Dwyer, As Chief Executive Office, West Moreton Hospital and Health Service [2014] QSC 252 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 -- 3 of 17 -- 4 Reasons for Decision [1] Dr Victor Chen was previously employed by the Gold Coast Hospital and Health Service ('GCHHS') as a Visiting Medical Officer (Cardiologist) in Diagnostic and Sub-specialty Services. At the time of lodging his appeal, he was a casual employee. He worked as a cardiologist with GCHHS on a temporary and casual basis from 2014. Dr Chen's employment came to an end after filing this appeal. [2] Between April and August 2020, Dr Chen was the subject of a show cause and disciplinary process regarding two allegations by his employer, namely: Allegation One: On 31 January 2020 at around 10am, [Dr Chen] failed to demonstrate courtesy and respect towards Candice Bawden, Registered Nurse, in the Cardiac Catheter Suite when [he] did not communicate effectively with her during a procedure. Allegation Two: On 31 January 2020 at around 10am, [Dr Chen] inappropriately applied force to Ms Candice Bawden, Registered Nurse, without her consent during a procedure in the Cardiac Catheter Suite. [3] By letter dated 18 August 2020, Ms Hannah Bloch, Executive Director People and Corporate Services, having earlier substantiated both allegations, advised that a penalty of a reprimand would be imposed. In the same correspondence, Ms Bloch confirmed she considered Dr Chen's actions were inappropriate and improper – consistent with the definition of misconduct as defined in s 187(4)(a) of the Public Service Act 2008 (Qld) ('the PS Act').1 [4] Dr Chen appeals the decision pursuant to ch 7 of the PS Act. An appeal under ch 7, pt 1 is not by way of re-hearing but involves a review of the decision arrived at and the decision-making process associated therein.2 [5] When reviewing the decision, it is not the role of the Commission to step into the shoes of Ms Bloch and determine what else might have been done in response to the events or issues which underpin the allegations. Instead, the purpose of the appeal is to determine whether the decision made was fair and reasonable.3 [6] Before turning to consider his grounds of appeal, it is relevant to note Dr Chen disputes the circumstances regarding the cessation of his employment. Regardless of how or why 1 It is relevant to note that the Public Service Act 2008 (Qld) was amended by virtue of the Public Service and Other Legislation Amendment Act 2020 (Qld) which took effect from 14 September 2020. References to the "Public Service Act 2008 (Qld)" throughout this decision are therefore references to the pre-amendment version of the Act which applied when Dr Chen filed his appeal on 11 September 2020. 2 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 3 Public Service Act 2008 (Qld) s 201(2); Page v John Thompson and Lesley Dwyer, As Chief Executive Office, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]. -- 4 of 17 -- 5 Dr Chen's employment ended, I note the Commission retains jurisdiction to hear an appeal regarding a disciplinary penalty imposed on a former public service employee.4 To be clear, the focus of this appeal is the disciplinary decision against which Dr Chen appeals rather than the circumstances leading to the conclusion of his employment with GCHHS. Grounds of Appeal [7] The primary grounds of appeal relied on by Dr Chen in his appeal relate to his concerns about the process undertaken by GCHHS when making its decision, in conjunction with his view that the decision-maker, a human resources executive, lacked the capability and expertise required to make a determination in respect of the allegations. He maintains the decision in relation to the two allegations is "inherently flawed and amounted to a failure of due process, procedural fairness and natural justice".5 [8] Dr Chen further contends the disciplinary penalty of a reprimand was unwarranted, excessive and disproportionate, particularly in circumstances where it resulted, in his view, in a decision to place an application he had made for conversion from casual to permanent employment status on hold, pending the outcome of the appeal.6 The Disciplinary Process [9] Dr Chen was issued a show cause notice on 21 April 2020, where he was requested to respond to two allegations. The notice included the following particulars:7 a) On 31 January 2020, you were allocated to the Cath Lab and completed procedures on several patients. One of the patients, who was admitted for a Cardiac Angiogram was Patient UR 5016991 (date of birth 20.4.1937). … d) During the procedure, you worked in close proximity to Ms Bawden, who was assigned as the Scrub Nurse and was required to work with you to control the femoral wire inserted into the patient's catheter. e) Later that day, Ms Bawden lodged a complaint alleging that during the procedure she 'felt a hard elbow in [her] side and then a forcefull (sic) shove [out of her] position'. She further stated that 'no words were said leading up to this, all [she] knew was [she] was being elbowed with force from the side with no warning' (Reference Complaint from Ms Bawden dated 31 January 2020). f) On 3 February 2020, Ms Hernandez provided her recollection of the incident, explaining she was the documentation nurse for the procedure, and she saw you 'push Candice with [your] right arm and push her hand away with [your] right hand while saying "I told you to let go". Ms Hernandez further advised that after the procedure Ms Bawden raised her concerns to 4 Public Service Act 2008 (Qld) ss 196(b), 207(b). 5 Appeal Notice filed 11 September 2020. 6 GCHHS's eventual refusal of that request is the subject of two appeals presently before the Commission – PSA/2020/225 and PSA/2020/449. 7 GCHHS's submissions filed 11 November 2020, Attachment 1. -- 5 of 17 -- 6 you and you apologised for your actions (Reference email from Keya [sic] Palacios [sic] Hernandez to Toni Courtis dated 3 February 2020 with the subject 'Incident Report'). g) On 2 February 2020, you also provided information about the incident to Dr Meng Tan … In your email, you advised that the 'scrub nurse [Ms Bawden] inexplicably did not want to let go of the angiography guide wire and catheter when [you were] obviously wanting to take control of it'. You further stated Ms Bawden 'did not listen to [your] body language nor behaved normally' and described her behaviour as 'far below professional expectations/standards' and her impediment of your movement was 'easily known to be counterproductive and also dangerous in a fragile elderly patient'. You further explained that you were concerned the patient was at risk of stoke [sic] during the procedure (Reference email from you to Dr Tan dated 2 February with the subject 'Response'). [10] Under the heading "Possible grounds for discipline" in relation to Allegation One, Ms Bloch advised she considered there may be grounds to discipline Dr Chen pursuant to s 187(1)(a) of the PS Act, in that he may have performed his duties carelessly, incompetently and/or inefficiently. [11] In the alternative, Ms Bloch referenced s 187(1)(f)(ii), noting Dr Chen may have contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, specifically cl 1.5 of the Code of Conduct for the Queensland Public Service ('the Code of Conduct') which relevantly provides as follows: 1.5 Demonstrate a high standard of workplace behaviour and personal conduct We have a responsibility to always conduct ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public. We will: a. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own ... [12] In relation to Allegation Two, Ms Bloch confirmed she considered there may be grounds to discipline Dr Chen pursuant to s 187(1)(b) in that he may be guilty of misconduct, that is, inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(e). [13] In the alternative, Ms Bloch confirmed Dr Chen may have contravened s 187(1)(f)(ii) in that he may have contravened, without reasonable excuse, cl 1.5 of the Code of Conduct. [14] Dr Chen was afforded a period of fourteen days to respond to the allegations. Attached to the show cause notice were various documents, including Ms Bawden's complaint, witness statements, the Code of Conduct and the Queensland Health Human Resources Policy E10 – Discipline ('Policy E10'). -- 6 of 17 -- 7 Response to Show Cause [15] Dr Chen responded to the show cause notice on 11 May 2021.8 In response to Allegation One, representatives on behalf of Dr Chen explained:  Earlier in the procedure, Dr Chen had advised Ms Bawden the patient was at high risk of a stroke;  On the first catheter pass, Dr Chen repeatedly requested that Ms Bawden "let go" of the guidewire by gently moving Ms Bawden's hands away. Ms Bawden did not object to Dr Chen's actions, either verbally or physically; and  Dr Chen continued with the procedure and as they were ascending the aorta with the guidewire and a second diagnostic catheter, Dr Chen politely and clearly requested that Ms Bawden "let go" of the guidewire on two occasions. In the absence of Dr Chen's control, there was no competent or safe control of the devices inside of the patient's aorta. Dr Chen explained why he needed Ms Bawden to let go of the guidewire, reiterating that there was a high risk of stroke given the patient had severe arterial disease. [16] Dr Chen's representative rejected the assertion in Ms Bloch's letter that there was a breakdown in communication between himself and Ms Bawden during the procedure. Instead, he submits he clearly and repeatedly asked Ms Bawden to release the guidewire on two separate occasions, but she failed to do so. [17] In response to Allegation Two, Dr Chen's representative submitted:  In response to Ms Bawden's failure to let go of the guidewire, which immediately risked permanent and serious injury to the patient, Dr Chen gently nudged Ms Bawden to prompt her to release the guidewire; and  Dr Chen did so by putting his right shoulder against Ms Bawden's left shoulder and gently nudging her away to her right. At the time, Dr Chen considered this approach was preferable given that:  he urgently needed to take control of the guidewire;  he would otherwise need to raise his voice at Ms Bawden; and  at that moment, he was unable to use his hands to take the guidewire. [18] Through his representatives, Dr Chen denied he behaved erratically during the procedure or otherwise behaved in an erratic manner, as alleged by Ms Bawden, noting the procedure was one he had performed many times, which in the end, was performed in a calm and controlled manner, with a safe outcome for the patient. 8 GCHHS's submissions filed 10 November 2020, Attachment 2. -- 7 of 17 -- 8 Substantiation of Allegations [19] Ms Bloch wrote to Dr Chen on 9 July 2020, setting out her decision in relation to both Allegations One and Two.9 In both instances, she determined the allegations were substantiated on the balance of probabilities. In relation to Allegation One, Ms Bloch advised that she:  Disagreed that Dr Chen's behaviour towards Ms Bawden was appropriate during the procedure, noting that "clearly something must have gone wrong or you would not have needed to have urgently taken the guidewire from Ms Bawden unexpectedly";  Considered Dr Chen was primarily responsible for clearly communicating his expectations so other staff, including Ms Bawden, could follow his lead;  Did not dispute Dr Chen's clinical assessment regarding the patient's increased risk of suffering from a stroke during the procedure; and  Considered it was imperative Dr Chen's communication was effective with all staff attending the procedure, particularly in so far as it involved the scrub nurse working with him. [20] Ms Bloch highlighted Dr Chen's recollection of the incident, in so far as it related to Allegation One, was at odds with Ms Bawden's account, in that Ms Bawden maintained she expressed her surprise at his actions with he took the guidewire from her unexpectedly. She noted Ms Bawden observed Dr Chen was generally "very loud" and maintained she would have followed Dr Chen's direction had he asked her to stop or let go of the guidewire. [21] Ms Bloch also relied on the account of another nurse present during the incident, Ms Kayla Palacios-Hernandez, noting she recalled that the conversation between Dr Chen and Ms Bawden caught her attention as they were both speaking quickly, and that she heard Ms Bawden repeatedly seek clarification from Dr Chen about what he wanted her to do. [22] According to Ms Bloch, Ms Palacios-Hernandez maintained Dr Chen did not clearly respond to Ms Bawden's questions in that he only partly answered or did not respond at all. Moreover, she confirmed that Ms Palacios-Hernandez recalled that Dr Chen sounded frustrated. Ms Bloch surmised the reason for Dr Chen's frustration was possibly related to Ms Bawden not doing what he expected, notwithstanding he had failed to respond to her repeated requests for instruction. [23] Ms Bloch concluded Ms Bawden's lack of understanding may well have explained her surprise when Dr Chen took the guidewire from her. 9 GCHHS submissions filed 10 November 2020, Attachment 3. -- 8 of 17 -- 9 [24] Having substantiated Allegation One, Ms Bloch determined there were grounds to discipline Dr Chen pursuant to s 187(1)(a) noting he had performed his duties carelessly, incompetently and/or inefficiently. [25] In the same correspondence, Ms Bloch concluded Allegation Two had also been substantiated, noting:  Dr Chen's admission to instigating physical contact with Ms Bawden, in circumstances where he claimed it had been necessary to take the guidewire where there was a risk of patient harm during the procedure;  Ms Bawden's recollection of the incident was again at odds with Dr Chen's account in so far as it concerned the amount of force used. That is, Dr Chen maintained he "nudged" Ms Bawden with his shoulder, whereas Ms Bawden described the interaction as being "like a footy shove"; and  Separately, Ms Palacios-Hernandez maintained she witnessed the incident and had observed Dr Chen, "move [his] arm to where [Ms Bawden] was and it looked like [he] pushed her…then she took at the same time a few steps to the side". [26] Ms Bloch concluded Ms Palacios-Hernandez' version of events matched Ms Bawden's account. Having regard to the accounts of both nurses as compared to that of Dr Chen, she concluded the amount of force used by Dr Chen was more significant than a nudge. [27] Ms Bloch acknowledged Ms Bawden continued to work with Dr Chen to finalise the procedure, but accepted she was very upset after the incident, and concluded it was unlikely her reaction would have been so emotive had the physical contact by Dr Chen been gentle or respectful. [28] Ms Bloch highlighted the importance of clinicians communicating clearly and concisely when performing an angiogram, and concluded Dr Chen's frustration at Ms Bawden's lack of understanding of his body language and non-verbal cues, in combination with a lack of clear direction, led to a situation where he felt the need to physically intervene to maintain patient safety. She concluded that a strong, directed statement such as "stop" or "let it go" would have achieved the same outcome and kept the patient safe. [29] In relation to Allegation Two, Ms Bloch concluded there were grounds to discipline Dr Chen pursuant to s 187(1)(b) in that he was guilty of misconduct, that is, inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(b)(a). -- 9 of 17 -- 10 Submissions The Disciplinary Process [30] Dr Chen maintains the disciplinary process was not conducted in accordance with Policy E10.10 In particular, he considers GCHHS's disciplinary action served no purpose and highlights the requirement for a delegate to consider whether management action could more appropriately address the concerns about the incident.11 [31] He submits GCHHS took no steps to manage the complaint for more than five weeks, only taking action after Dr Chen successfully appealed another decision of GCHHS in the IRC.12 He further submits the disciplinary process was conceived to delay or defeat a separate application for conversion from casual to permanent employment status.13 [32] In support of his concerns about the process, Dr Chen argues GCHHS did not interview him or other relevant witnesses in relation to the incident and failed to sufficiently inform him the investigation was continuing between 14 February 2020 and 22 April 2020.14 [33] Relying on Public Service Commission Directive 02/17 – Managing employee complaints and Policy E10, Dr Chen maintains there was a delay in the investigation process, submitting GCHHS "advised on 14 February that it would 'hold off' interviewing [Dr Chen], did not obtain interview evidence from [Dr Chen], and then did not communicate further prior to the give cause notice 22 [sic – 21] April 2020".15 [34] In contrast, GCHHS contends the disciplinary process was conducted in accordance with the legislative requirements for a disciplinary process, which are operationalised through Policy E10.16 [35] It contends an external investigator was engaged purely to take formal statements from Ms Bawden and Ms Palacios-Hernandez, noting Dr Chen was invited to attend an interview with the investigator on 12 February 2020, which he requested be rescheduled to 19 February 2020.17 Having rescheduled the interview, GCHHS maintains Dr Chen, in response to a request about the timing of the interview, advised he was "weighing up an appropriate response" and did not agree to attend an interview at that time.18 10 Dr Chen's submissions filed 24 November 2020, [3]. 11 Ibid [3(a)]. 12 Ibid [3(b)]. 13 Ibid. 14 Ibid [3(c)]. 15 Ibid [3(d)]. 16 GCHHS's submissions filed 10 November 2020, [10]. 17 Ibid [12]-[13]. 18 Ibid [13]. -- 10 of 17 -- 11 [36] It submits Dr Chen was asked to contact GCHHS if he wished to participate in an interview and provide a statement.19 In support of this position, GCHHS submitted a series of emails between Dr Chen and a GCHHS Workplace Relations representative discussing appropriate meeting times and the objective of the interview.20 [37] GCHHS maintains that, having reviewed the contents of each statement which was obtained, the delegate was reasonably satisfied there may be grounds for discipline in respect of Dr Chen's conduct, and a decision was made to commence a disciplinary process having regard to the information available at the time.21 [38] Dr Chen's view that Ms Bloch should not have made the decision as a "human resources executive" who "possessed no medical or clinical training"22 is disputed by GCHHS in circumstances where it contends she was the authorised delegate and exercised her authority appropriately.23 [39] In response to Dr Chen's concerns that the clinical issues associated with patient care during the procedure were not taken into consideration, GCHHS submits it does not dispute Dr Chen's clinical assessment that the patient was at risk of stroke during the procedure, but maintains that it was Dr Chen's conduct towards Ms Bawden that was being addressed during the disciplinary process, rather than the clinical care provided to the patient during the procedure. [40] That is, GCHHS disputes Dr Chen's view that he had "no other option" than to use physical force against Ms Bawden to allow him to take the guidewire.24 Moreover, as the lead clinician in the theatre, Dr Chen held the primary responsibility for running the procedure and ensuring the team worked together to successfully perform the procedure and keep the patient safe.25 [41] GCHHS argues the decision by the delegate to not obtain further "clinical" evidence was reasonable and appropriate, given the allegations relate to communication between Dr Chen and Ms Bawden. Moreover, the evidence demonstrates that the breakdown in communication led to Dr Chen's undisputed decision to use physical force against her to take the guidewire during the procedure.26 [42] In those circumstances, GCHHS maintains the finding Dr Chen performed his role carelessly, incompetently and/or inefficiently was appropriate 19 Ibid. 20 Ibid, Attachment 6. 21 Ibid [14]. 22 Appeal Notice filed 11 September 2020. 23 GCHHS's submissions filed 10 November 2020, [16]. 24 Ibid [18]. 25 Ibid [20]. 26 Ibid [21]. -- 11 of 17 -- 12 [43] In relation to Dr Chen's concerns about "inconsistencies and embellishments over time" with respect to the initial complaints and subsequent statements obtained approximately two weeks after the event, GCHHS, while acknowledging there are some minor inconsistencies in the information provided, maintains Ms Bawden did not substantially change her version of events.27 Consideration [44] The PS Act provides for the discipline of employees in the public sector. A disciplinary process can only be commenced where the delegate is reasonably satisfied, based on the evidence before them, that the employee has engaged in conduct that falls under the auspices of s 187 of the PS Act. [45] Having reviewed the content of the complaints and the subsequent statements obtained from Ms Bawden and Ms Palacios-Hernandez, I am satisfied it was open to Ms Bloch to determine in late April 2020 that Dr Chen may have engaged in such conduct. [46] Dr Chen asserts GCHHS progressed the disciplinary matter only in response to his success in the IRC in March 2020 in an unrelated Public Service Appeal. [47] The difficulty I have with his submission is that, absent any meaningful evidence in support of this position, it is clear a decision had been made in early March 2020, before the outcome of his Public Service Appeal was known, to progress the matter, at least to the extent that arrangements were put in place to obtain statements from Ms Bawden and Ms Palacios-Hernandez, and Dr Chen had been invited to participate in the process. [48] Further, Dr Chen maintains the events which are the subject of this appeal would have been better dealt with at a local level. That is, it was not necessary to progress the matter to a formal disciplinary process. [49] Policy E10 requires a delegate to give consideration, before commencing a disciplinary process, to whether management action could more appropriately address the concern. Certainly, on its own, Allegation One may well have lent itself to a local management action approach. However, when combined with the particulars of Allegation Two, which extended to a complaint about physical force, I accept it was reasonable for Ms Bloch to progress the complaint through a formal show cause process. [50] Dr Chen argues he was not formally interviewed during the early stages of the disciplinary process. Having considered a series of email exchanges provided to the Commission, I am satisfied Dr Chen, having previously confirmed that he would attend an interview, subsequently advised he was weighing up his response and elected not to attend the scheduled interview. Having indicated he would not be attending, Dr Chen 27 Ibid [23(c)]. -- 12 of 17 -- 13 was specifically advised that GCHHS would "hold off on making any arrangements for you to meet with Ms Scovell [the investigator] unless you advise me otherwise".28 [51] As best I can tell, Dr Chen or his representatives subsequently took no action to advise GCHHS he wished to participate in an interview. [52] The exchange in relation to the timing of the re-scheduled interview occurred two days after Dr Chen had been advised by the same representative, via email, that the purpose of the interview was to give Dr Chen an opportunity to expand on information he had previously provided to GCHHS, following which the delegate would decide how best to proceed. [53] In those circumstances, I am satisfied Dr Chen was afforded the opportunity to participate in the initial interviews, which preceded the decision by the delegate to progress the show cause process. Likewise, I am satisfied the relevant witnesses were interviewed having regard to the location of the incident and the proximity of other employees at the time it occurred. [54] Having reviewed the show cause correspondence and the additional materials annexed to the notice, I am satisfied Dr Chen was sufficiently informed about the allegations and provided with adequate supporting materials in the form of statements from interviewees, relevant policies, emails and incident reports. Dr Chen was also provided with an adequate time within which to respond to the allegations. [55] Dr Chen submits an "apprehension of bias" arose when GCHHS failed to progress his disciplinary matter for a period of five weeks, and not until he was successful in his Public Service Appeal in March 2020. However, there is no evidence before me that supports his complaint. Moreover, having regard to the nature of Allegation Two, I have difficulty accepting the complaint would have simply been put to one side or not progressed had Dr Chen not been successful in his Public Service Appeal. [56] Although I am satisfied GCHHS acted appropriately with respect to the disciplinary process, I am concerned about several of the conclusions reached by Ms Bloch in relation to Allegation One. [57] In my view, the respective accounts of what transpired between Dr Chen and Ms Bawden regarding any verbal interaction which took place between them prior to the physical interaction are not entirely clear. [58] For example, Ms Palacios-Hernandez recalled Dr Chen and Ms Bawden were, at one point, speaking quickly, however the nature and content of the conversation in her initial recollection is not entirely clear or consistent with her subsequent statement. 28 Ibid Attachment 6. -- 13 of 17 -- 14 [59] Conversely, Ms Bawden maintains there was very limited communication between herself and Dr Chen, which was why she was surprised when he grabbed the wire. Dr Chen, on the other hand maintains he was communicating in a respectful manner and appropriately directing Ms Bawden in relation to the procedure. [60] Although I accept there was most likely a breakdown in communication between Dr Chen and Ms Bawden, in the absence of any other witness statements or materials that provide further insight into what was, or was not, said I am not convinced there was in fact sufficient evidence before Ms Bloch to substantiate Allegation One, that is that Dr Chen "failed to demonstrate courtesy and respect towards Ms Bawden, when [Dr Chen] did not communicate effectively…during a procedure". [61] However, the difficulty for Dr Chen is that s 201 of the PS Act clearly states that I must decide the appeal by reviewing the decision appealed against. In this case, that is the decision of Ms Bloch dated 18 August 2020 and attached to Dr Chen's appeal notice filed 11 September 2020. Unfortunately for Dr Chen, that decision relates to the issue of penalty only. [62] If Dr Chen wished to appeal the substantiation of Allegation One, he was required to bring an appeal in respect of that decision, being the second show cause notice dated 9 July 2020. While I have some sympathy for Dr Chen in this respect, my powers are limited in the decisions which I may review. [63] My views in relation to Allegation Two are somewhat different. [64] Although Dr Chen takes issue with the inclusion of details of Ms Bawden crying in statements obtained from nurses approximately two weeks after the incident took place, and relies on their claims to support his concerns about both Ms Bawden and Ms Palacios-Hernandez embellishing their accounts of the event, I do not consider the subsequent statements are inconsistent or at odds with what was initially reported in relation to the physical contact. [65] Instead, having been afforded the opportunity to provide additional information about the event, I accept Ms Bawden and Ms Palacios-Hernandez simply elaborated on what had occurred at the time. [66] On his own account Dr Chen conceded he used his shoulder (albeit gently) to nudge Ms Bawden while she was assisting him with the procedure. [67] As best I understand, Ms Bawden was holding the guidewire at the time this occurred. Dr Chen's explanation is that he did not want to shout at her and he could not use his hands as he was handling the angiography devices in order to maintain control and safety. [68] The description of the incident, as provided by Ms Bawden and Ms Palacios-Hernandez are both, in my view, relatively consistent, irrespective of whether they are drawn from -- 14 of 17 -- 15 the complaints obtained in the immediate aftermath of the incident, or later, when more detailed statements were recorded. That is, at the very least, it would seem Dr Chen "pushed" Ms Bawden with sufficient force that she was forcibly moved to her right. [69] In his appeal notice, Dr Chen relies heavily on the patient's safety and wellbeing, noting that had he not acted as he did, the safety and the wellbeing of the patient would have been at risk. He repeatedly highlights Ms Bloch's lack of medical or clinical training, submitting she did not, or did not adequately, inform herself of the scope and extent of the risks by obtaining evidence from, or consulting with, appropriately trained and qualified medical personnel. [70] The difficulty I have with this submission is that GCHHS does not take issue with Dr Chen's clinical assessment that the patient was at risk of stroke, nor his decision to take control of the guidewire. Instead, the focus of Allegation Two is directed towards his decision to apply physical force to Ms Bawden. [71] In her decision, Ms Bloch observes that a "strong, directed statement such as 'stop' or 'let it go' would have achieved the same outcome and ensured the patient was safe".29 Having considered the submissions before the Commission, including the statements of Ms Bawden and Ms Palacios-Hernandez and Dr Chen's initial account of the events, I agree. [72] In my view, for the reasons set out above, Ms Bloch's decision to substantiate Allegation Two was fair and reasonable. [73] Ms Bloch, having arrived at her conclusions in relation to Allegation Two, considered there were grounds to discipline Dr Chen pursuant to s 187(1)(b) of the PS Act in that he was guilty of misconduct, namely that he had engaged in inappropriate or improper conduct in an official capacity. [74] Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by "inappropriate or improper conduct". [75] In Pillai v Messiter (No 2),30 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. 29 GCHHS's submissions filed 10 November 2020, Attachment 6. 30 (1989) 16 NSWLR 197. 31 Ibid 200. -- 15 of 17 -- 16 [76] In Mathieu v Higgins & Anor,32 consideration was given to 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".33 [77] Daubney J, when considering s 10(a) of the QAS Policy, was of the view it was not appropriate to rigidly separate the definition into its component parts.34 Instead, he determined that each term should be read as giving colour to the other.35 His Honour held that:36 ... '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 to 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. [78] In support of Ms Bloch's conclusion that there were grounds to discipline Dr Chen pursuant to s 187(1)(b) of the PS Act, GCHHS maintains Dr Chen deliberately chose to physically intervene rather than use alternative means to ensure Ms Bawden released the guidewire. According to GCHHS, the reasons for this approach were set out in her decision-letter when she advised: It is critical for the safety of patients that clinicians communicate clearly and concisely when performing an angiogram. In this instance, I am of the view your frustration at Ms Bawden's lack of understanding of your body language and non-verbal cues and your lack of clear direction led to a situation where you felt you needed to physically intervene to maintain patient safety. [79] The difficulty I have with GCHHS's submissions is that it not entirely clear, having regard to the statements provided to the Commission, whether it was his frustration or some other event or interaction that resulted in him applying physical force. [80] Although I consider Dr Chen's actions were entirely unacceptable, I'm not persuaded he intentionally set out to harm Ms Bawden in the moment, nor does it appear on the materials that he was indifferent to his actions. [81] Instead, I consider it possible he became caught up in the procedure and the safety of the patient, to such an extent that he briefly lost sight of his environment and the people around him. In those circumstances, I consider his actions fall short of the threshold for misconduct. [82] As it was on the basis that Dr Chen had engaged in misconduct that Ms Bloch considered the disciplinary penalty, and I am not convinced he met that threshold, I consider her decision to discipline Dr Chen pursuant to s 187(1)(b) was not fair and reasonable. 32 [2008] QSC 209. 33 Ibid [28]. 34 Ibid [25(a)]. 35 Ibid. 36 Ibid [26]. -- 16 of 17 -- 17 [83] Instead, this is a matter where the grounds of discipline are more amenable to the circumstances described at s 187(1)(f)(ii) in that Dr Chen has contravened, without reasonable excuse, the Code of Conduct in that he has failed to demonstrate a high standard of workplace behaviour and personal conduct. [84] To be clear, I do not consider Dr Chen's concerns about patient safety to be a sufficient excuse for his failure to comply with cl 1.5 of the Code of Conduct. Dr Chen's actions in pushing Ms Bawden aside were unacceptable. As observed by Ms Bloch, there were other ways in which he could have equally addressed his concerns about patient safety. [85] Given the circumstances regarding Dr Chen's employment and noting that GCHHS may make a disciplinary finding, or take or continue disciplinary action against Dr Chen, even in circumstances where his employment with the public service has ceased,37 I consider that the best course of action here is to return the decision to Ms Bloch to undertake a fresh show cause process in relation to the disciplinary penalty. Order [86] I order accordingly: 1. The appeal is allowed. 2. The disciplinary penalty is set aside. 3. The decision that the appellant's conduct does not meet the threshold for misconduct under s 187(1)(b) and s 187(4)(a) of the Public Service Act 2008 (Qld) is substituted in lieu thereof. 4. The matter is returned to the decision-maker to undertake a fresh show cause process only in relation to the disciplinary penalty, with the following directions: (a) Dr Chen be afforded the opportunity to show cause, in writing, within fourteen days of the fresh show cause notice, why he should not be disciplined in relation to Allegation Two pursuant to s 187(1)(f)(ii) of the Public Service Act 2008 (Qld). (b) The decision-maker must have regard to the earlier substantiation of Allegation One and the findings set out in this decision. 37 Public Service Act 2008 (Qld) s 188A(1), (3)-(4). -- 17 of 17 --