Ayling v State of Queensland (Cairns and Hinterland Hospital and Health Service) (No. 2) [2020] QIRC 120

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ayling v State of Queensland (Cairns and Hinterland Hospital and Health Service) (No. 2) [2020] QIRC 120 PARTIES: Ayling, Alison (Applicant) v State of Queensland (Cairns and Hinterland Hospital and Health Service) (Respondent) CASE NO: D/2019/104 PROCEEDING: Arbitration of industrial dispute DELIVERED ON: 17 August 2020 HEARING DATE: 23 April 2020 MEMBER: McLennan IC ORDERS: That the CHHHS’s Direction issued on 10 July 2019 is to be withdrawn. CATCHWORDS: INDUSTRIAL LAW – ARBITRATION OF INDUSTRIAL DISPUTE - where direction given to undertake further assessment – whether direction is reasonable – where a direction is not reasonable because it is based upon incorrect facts. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld), s 9, s 447, s 448, s 451, s 541, sch 5 Queensland Nurses' Union of Employees v Sundale Garden Village, Nambour (No 3) (2006) 182 QGIG 16. -- 1 of 21 -- 2 Queensland Services, Industrial Union of Employees AND Sunshine Coast Regional Council (2009) 192 QGIG 5. The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees AND QR (2000) 165 QGIG 526. APPEARANCES: Ms E. Bassingthwaighte, Hall Payne Lawyers for the Applicant. Mr C. J. Eylander, Counsel directly instructed by Mr M. Peters of Cairns and Hinterland Hospital and Health Service for the Respondent. Decision Background [1] On 21 August 2019, a Notice of industrial dispute was filed on behalf of Ms Ayling (the Applicant) under s 261 of the Industrial Relations Act 2016 (Qld) (the IR Act) with the Cairns and Hinterland Hospital and Health Service (CHHHS) (the Respondent). [2] The dispute concerns CHHHS’s direction of 10 July 2019 that Ms Ayling take part in a further 8 weeks of supported practice, including a further 3 ANSAT assessments (the Direction). [3] The Direction was issued by Ms Cutler (Executive Director of Nursing and Midwifery) on the basis that Ms Ayling had allegedly:1 …failed to meet some markers and that [her] overall performance was still assessed as being limited. [4] The CHHHS submitted that the assessment of Ms Ayling’s performance was conducted:2 …by a qualified nurse assessor under a structured framework pursuant to standard and policy, and the direction was reasonable in the circumstances. [5] Ms Ayling contended that the Direction is not reasonable because it:3 (a) was issued in response to, and with reliance on, the results of the ANSAT Assessment undertaken by Ms Susan Hull on 8 May 2019 (the ANSAT Assessment) and Ms Hull was wrong in her conclusions that: 1 Applicant’s Closing Submissions, filed 19 June 2020, [2]. 2 Respondent’s Closing Submissions, filed 9 July 2020, [2]. 3 Applicant’s Closing Submissions, filed 19 June 2020, [3]. -- 2 of 21 -- 3 (i) The Applicant failed to demonstrate satisfactory behaviours and practices in respect of two of the Assessment items; and (ii) the Applicant’s overall performance was appropriately described as ‘limited’. (b) goes beyond what would be reasonably necessary in all the circumstances. [6] Ms Ayling has asserted that where a direction involves an exercise of discretion:4 …that discretion must be exercised in a way that is sound, defensible and well-founded in order for the direction to be reasonable. Directions that are based on a factual error will not have been exercised in a way that is reasonable. [7] This case turns on a factual dispute as to Ms Ayling’s conduct on the date in question. [8] Having considered all the evidence before me, I find that Ms Ayling acted appropriately in the exercise of her clinical judgment on 8 May 2019. It follows that the Direction issued by the CHHHS to Ms Ayling it is not reasonable and so must be withdrawn. Jurisdiction [9] The subject of the application is an "industrial matter" for the purposes of the IR Act at s 9 and sch 5. Under s 447(1) of the IR Act, the Commission's functions include (relevantly): 447 Commission’s functions (1) The commission’s functions include the following - (i) resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order; . . . (o) making declarations about industrial matters. [10] Under s 448(1)(b) of the IR Act the Commission may "hear and decide": 448 Commission's jurisdiction (1) The commission may hear and decide the following matters - . . . (b) all questions - (i) arising out of an industrial matter; or (ii) involving deciding the rights and duties of a person in relation to an industrial matter; or (iii) it considers expedient to hear and decide about an industrial matter. 4 Transcript of Hearing, 23 April 2020, page 4, [20]. -- 3 of 21 -- 4 [11] The Commission has the power under s 451(1) and (2) of the IR Act to do all things necessary or convenient to be done for the performance of its functions and to make decisions or orders it considers appropriate. [12] Section 541(a) of the IR Act enables the Commission to: (a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause; [13] In the QSU v Sunshine Coast Regional Council,5 the Commission noted that the arbitration of the industrial dispute in that case had been "conducted in the manner of a hearing de novo where the Commission considers the matter afresh". A "hearing de novo" is the correct approach to the arbitration of an industrial dispute. [14] An employer has the right to organise a business in the way it considers the most efficient however that prerogative is subject to it being exercised in a manner which could not be described as harsh, unjust or unreasonable.6 [15] There was no dispute between the parties as to the jurisdiction of the Commission to hear and decide this matter. Orders sought [16] The Commission has been requested to make the following orders:7 The Commission should exercise its broad discretion under s 541(a) in favour of the Applicant and set aside the Direction, on the basis that it is unreasonable, as the just and preferable outcome. [17] Having decided this industrial dispute in favour of Ms Ayling, I order accordingly at paragraph [94] below. The Question to be decided [18] The parties agreed that the question to be decided at the Hearing of this matter was whether or not the CHHHS’s Direction that Ms Ayling undertake a further 8 weeks of supported practice, with a further 3 ANSAT assessments, is a reasonable direction with which Ms Ayling is required to comply.8 5 Queensland Services, Industrial Union of Employees AND Sunshine Coast Regional Council (2009) 192 QGIG 5. 6 The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees AND QR (2000) 165 QGIG 526; Queensland Nurses' Union of Employees v Sundale Garden Village, Nambour (No 3) (2006) 182 QGIG 16. 7 Applicant’s Closing Submissions in Reply, filed 24 July 2020, [13]. 8 Transcript of Hearing, 23 April 2020, page 4, [10] – [15]. -- 4 of 21 -- 5 [19] In the Applicant’s opening submissions, Ms Bassingthwaighte explained:9 The dispute is entirely as to whether the direction is reasonable…Now, we accept that within the confines of the employment relationship the employer has award ability to direct its employees to undertake tasks that fall within the scope of the task that they are engaged to perform. However, where a direction involves the exercise of discretion, it is the applicant’s position that that discretion must be exercised in a way that is sound, defensible and well-founded in order for the direction to be reasonable. Directions that are based on a factual error will not have been exercised in a way that is reasonable. [20] Further, she stated that:10 The applicant’s case in a nutshell, is that the evidence of Ms Hull as to the concerns held by the Cairns and Hinterland Hospital and Health Service were not sound, defensible or well-founded, such that the assessment conducted on 8 May 2019 as those results reflected in the ANSAT assessment summary of the same date, do not present the employer with a well-founded basis on which to exercise its discretion that the applicant undertake the further eight weeks of supported practice. [21] In the opening submission for the Respondent, Mr Eylander confirmed that:11 The lawfulness of the direction is not challenged, it’s just the reasonableness of the direction and, of course, the respondent relies on the assessment performed by Ms Hull and also the factors that were taken into account by Ms Cutler in making the direction. Witnesses [22] Evidence was provided by four witnesses employed by the CHHHS. [23] The witness for the Applicant’s case was: • Ms Alison Ayling, Registered Nurse. [24] The witnesses for the Respondent’s case were: • Ms Susan Hull, CNC Ortho Complex Case and Discharge Coordinator; • Ms Amy Diggins, Medical Clinical Nurse Consultant; and • Ms Debra Cutler, Executive Director of Nursing and Midwifery Services. Consideration 1. Factual dispute – Ms Ayling’s professional conduct on 8 May 2019 9 Transcript of Hearing, 23 April 2020, page 4, [15] – [25]. 10 Ibid [25] – [35]. 11 Ibid page 18, [25] – [30]. -- 5 of 21 -- 6 Medical practitioner’s direction to Ms Ayling [25] About mid-morning on 8 May 2019, one of the patients who had previously exhibited low blood pressure was reviewed by a medical practitioner. Ms Ayling and Ms Hull were present when the medical team gave instructions about that patient’s blood pressure. [26] Ms Hull’s recollection in her evidence in chief was that the Doctor had said the blood pressure was to remain “above 80”.12 However, in cross-examination, the following exchange occurred:13 Ms Bassingthwaighte: … So you were aware that the medical team were happy to tolerate a systolic blood pressure of 80 with respect to this particular patient, and you knew that from the clinical handover? Ms Hull: Yes. Ms Bassingthwaighte: …Did you read the patient notes at all? Ms Hull: I had a look at the patient notes with Alison in the morning, we looked at all of the patient notes as part of the process, yeah. Ms Bassingthwaighte: Did you notice that in respect of this particular patient, the patient notes recorded that the medical team were: Happy to tolerate BP to 80 systolic. Did you notice that? Ms Hull: I’m sorry, I – I honestly can’t remember exactly everything that I read that day on all of the patients. [27] Ms Ayling’s evidence in chief was that the Doctor’s instruction was to advise them if the blood pressure fell below 80. In cross-examination, Ms Hull’s recollection of the instructions was put to Ms Ayling:14 Mr Eylander: …And doctors – sorry, the doctor you say said words to the effect that you’ve got at page 3 of your statement, you say, “The patient’s blood pressure is low and has been low for a couple of days, but it is stable. Keep an eye on the patient’s blood pressure and let me know if her systolic drops below 80.”? Ms Ayling: That’s what the doctor said – roughly. Yes. Mr Eylander: Because Ms Hull says that the doctor said, “The blood pressure is to remain above 80.”? 12 Transcript of Hearing, 23 April 2020, page 7, [40]. 13 Ibid, page 22. 14 Ibid, page 7 - 9. -- 6 of 21 -- 7 Ms Ayling: Yeah. And the doctor said let me know if it drops below. Mr Eylander: Well, did he say that they wanted the blood pressure to remain above 80? Ms Ayling: Yeah, remain above 80 and let them know if it drops below 80. Mr Eylander: And the – when the systolic pressure is below 90, that’s usually an alert for the nurse? Ms Ayling: Usually, yes. Mr Eylander: And a reading of 80 would be something the medical team would want to be alerted to? Ms Ayling: Correct. … Mr Eylander: Okay. And the doctor wanted the systolic pressure to be above 80? Ms Ayling: Yes. [28] The issue of whether the blood pressure was to stay at 80, above 80, or not below 80 is resolved by the Doctor’s notes which provide “Happy to tolerate BP to 80 systolic…”.15 [29] From those notes, it seems that the Doctor was content to tolerate a reading of 80, and so would only need to be advised once the blood pressure dropped below 80. Given the Doctor who wrote that note did not give evidence in these proceedings, I consider the written note to be the most reliable version of the instructions. It would have been consistent with that Doctor’s instructions, as evidenced by the notes, for Ms Ayling to only initiate further action once the pressure went below the tolerance level of 80. That coincides with Ms Ayling’s evidence in chief evidence as to her recollection of the conversation with the medical team, though contradicts Ms Hull’s evidence in chief that the blood pressure was to remain “above 80”. [30] As such, I find that the medical team were prepared to tolerate a systolic blood pressure of 80 for the patient in question. Conversation between Ms Ayling and Ms Mangubat [31] The second issue is whether Ms Ayling would have taken appropriate action on her own initiative – or whether she only acted as a result of Ms Mangubat’s input. 15 Exhibit 1, Statement of Alison Ayling, filed 1 April 2020, AA-2, page 3. -- 7 of 21 -- 8 [32] In that regard, my finding that the medical team was prepared to tolerate a blood pressure of 80 is particularly pertinent. Criticisms of the timeliness of Ms Ayling’s actions cannot be borne out in circumstances where the tolerance of the medical team had not yet been breached. Ms Ayling’s actions must be viewed in light of the fact that the patient’s blood pressure was at, but had not surpassed, the medical team’s stated tolerance for that patient. [33] Ms Ayling has outlined the various factors she considered in the exercise of her clinical judgement. Ultimately, her determination was to wait for Ms Mangubat to return, so that she could use the phone to contact the medical team. [34] Immediately upon Ms Mangubat’s return, Ms Ayling’s evidence is that she told her colleague nurse about the patient’s blood pressure as a brief precursor to asking her for the phone. Ms Ayling states that it was “…a few second conversation” that drew on her experience of “…good clinical practice to keep your staff members informed of what’s happening and what you’re doing so everyone knows where everyone is at.” Ms Ayling agrees that Ms Mangubat said “Are you going to call the doctor?” and she responded “Yes, I need the phone.”16 [35] This account certainly has a ring of truth to it. The nature of the exchange does not indicate to me that Ms Ayling had no intention of calling the doctor until Ms Mangubat asked her about that. On the contrary, if Ms Ayling had thought the patient’s situation was so dire that not a moment could be spared to explain her need for the phone to Ms Mangubat, it would rather have pointed to the impetus to make a MET call instead. That Ms Mangubat inquired as to whether Ms Ayling was “…going to do something about that”17 is not inconsistent with her evidence that she fully intended to do so. I am convinced that the nurses had each independently arrived at the same view of what now needed to occur. [36] Despite Ms Hull’s report of Ms Mangubat’s apparent distress following this conversation, Ms Mangubat was not called as a witness in these proceedings. In deciding ‘whose account’ to accept, I prefer the sworn evidence of Ms Ayling (herself a party to that conversation) above Ms Hull’s recount of Ms Mangubat’s impression following it. In doing so, I note Ms Hull has been placed in the invidious position of providing evidence relating to another’s recount of a conversation some time ago. [37] I find that Ms Ayling had independently determined to contact the medical team about the patient’s reading of 80 and that she was waiting for Ms Mangubat’s return with the phone in order to do so. To be clear, I do not believe that Ms Ayling arrived at this course of action only when prompted to do so by Ms Mangubat. 16 Transcript of Hearing, 23 April 2020, page 10, [15] – [30]. 17 Respondent’s Closing Submissions, filed 9 July 2020, page 3. -- 8 of 21 -- 9 Whether appropriate treatment was applied by Ms Ayling [38] In this decision I have found that the medical team were prepared to tolerate a systolic blood pressure of 80. Even so, Ms Ayling decided to escalate the matter, and so her actions must be viewed in that light. [39] There were two options available to Ms Ayling in that regard: • Escalate the care of the patient to the treating medical team; or • Make a MET call. [40] The evidence of both Ms Ayling and Ms Diggins was that “…the appropriate action to have been taken in the circumstances was to escalate the patient to the medical team.”18 [41] Ms Hull’s stated opinion initially was that Ms Ayling should have made a MET call:19 In my professional opinion when considering the patient’s presentation as compared to the morning, coupled with the patient’s systolic blood pressure reading being below 90, Ms Ayling should have immediately escalated the matter to a MET / Emergency Call… [42] However, Ms Hull conceded under cross-examination that she wasn’t aware of the contents of the patient’s notes at the time she advised Ms Ayling that a MET call should have been made: Ms Bassingthwaighte: But there’s notes in the patient charts that say the doctor is happy to tolerate a systolic blood pressure of 80? Ms Hull: Yes. Ms Bassingthwaighte: But you weren’t aware of those notes at the time you spoke to Ms Ayling, at the time you advised her that your view was that a MET call should have been made? Ms Hull: I was aware of the parameters the doctors were – were discussing earlier in the day, yes. Ms Bassingthwaighte: Ms Hull, can you answer my question, you weren’t aware that the patient notes recorded that the doctors were happy to tolerate a systolic blood pressure reading of 80 at the time you spoke to Ms Ayling and said to her that a MET call should’ve been made? Ms Hull: [indistinct] Ms Bassingthwaighte: You were aware of the patient notes? 18 Applicant’s Closing Submissions, filed 19 June 2020, [45]. 19 Exhibit 2, Statement of Ms Susan Hull, filed 20 April 2020, [18]. -- 9 of 21 -- 10 Ms Hull: No. Ms Bassingthwaighte: Reflecting that? Ms Hull: No. [43] Ms Hull later agreed that notifying the medical team would also have been an appropriate clinical response:20 Ms Bassingthwaighte: Did you say to Ms Ayling in that meeting that she should have made a MET call? Ms Hull: I don’t remember using those words, I remember saying that any – an escalation would have been appropriate, so – Ms Bassingthwaighte: But Ms Ayling did escalate the matter? Ms Hull: It was – it was in relation to the timeliness of it. Ms Bassingthwaighte: So even though your view was – and still is – that a MET call ought to have been made you didn’t put that to Ms Ayling in the course of that feedback session? Ms Hull: I don’t remember the exact words, but in talking with – and providing feedback to pa – to any person in an assessment in relation to escalating concerns, I would always use the parameters from notifying medical officer through MET calls. So I would have used both terms. Ms Bassingthwaighte: But you don’t recall specifically what you said? Ms Hull: I can’t specifically tell you word for word but I would’ve used both terms. Ms Bassingthwaighte: Because you accept that there is an exercise of clinical judgement inherent in those actions and that a MET call and escalating the matter to a treating practitioner were both appropriate actions to be taken? Ms Hull: Correct. [44] I find that Ms Ayling acted appropriately in the circumstances, with respect to the course of action taken to escalate the care of the patient to the treating medical team. Whether Ms Ayling’s actions were timely [45] Having been satisfied that Ms Ayling escalated the care of the patient to the treating medical team, the final element of my consideration of her ‘Professional Conduct’ rests on the timeliness of that escalation. 20 Transcript of Hearing, 23 April 2020, page 28 [35] – page 29 [10]. -- 10 of 21 -- 11 [46] As set out above, I have found that the medical team was prepared to tolerate a systolic blood pressure of 80 for the patient, which had not been surpassed when Ms Ayling measured the patient. I have considered her actions in that light. [47] Other relevant factors in this consideration are: • Ms Ayling’s attempts to locate the phone; • Ms Ayling’s observations of the patient; and • The response of the medical team once notified. [48] Ms Ayling gave the following testimony relevant to the timeliness of her attempts to locate the phone and her observations of the patient. The exercise of her clinical judgement is foundational to this account:21 Mr Eylander: …Now when the alert came up, a warning comes up on the machine? Ms Ayling: Yes. Mr Eylander: And how did you dismiss that warning? Ms Ayling: I didn’t dismiss it. I acknowledged it and I escalated it with the doctor. Mr Eylander: Okay. You acknowledged it. How did you acknowledge it? Ms Ayling: I looked at what it said and knew I needed to call the doctor. Mr Eylander: Now you say in your statement that Ms – that the other registered nurse, Ms Mangubat, had the phone? Ms Ayling: Yes. Mr Eylander: And she wasn’t in the bay? Ms Ayling: No. Mr Eylander: So when you say that you alerted the doctor, you waited until Ms Mangubat came back into the bay? Ms Ayling: Yes. As I hadn’t really worked on that ward before, I didn’t really – so I wasn’t – didn’t want to leave the patient unattended to go searching around for a phone. I didn’t think she was going to be that long. I stayed in the room. The family was around the patient, talking. The patient was sitting up in bed talking to the family. I kept any eye on that patient while I did the obs on the next patient and as soon as she came in, I asked her for the phone to call the doctor. Mr Eylander: And? 21 Transcript of Hearing, 23 April 2020, page 9 [1] – page 10 [10]. -- 11 of 21 -- 12 Ms Ayling: She was sitting up. She was asymptomatic. She was talking with her family. Mr Eylander: But you had an alert from the - ? Ms Ayling: Yes, and so I used my clinical judgement. Mr Eylander: Okay. And the doctor wanted the systolic blood pressure to be above 80? Ms Ayling: Yes. Mr Eylander: And you recognised you that you needed to contact the doctor? Ms Ayling: Yes, and I did. Mr Eylander: And did you – with Ms Mangubat out of the room – did you get the attention of the supervisor nurse on the floor? Ms Ayling: How could I have done that? It was way down the other end of the ward. I didn’t have a phone. Mr Eylander: Couldn’t have opened the door, popped your head out, got the attention of – anyone? Ms Ayling: When I popped my head down the corridor, there was no one down – Mr Eylander: Okay. So you did pop your head out the door, did you? Ms Ayling: Down the corridor, but I stayed in the room and looked down the corridor and no one was there. Mr Eylander: So you looked down the corridor? Ms Ayling: And that’s why I stayed in the room – Mr Eylander: Okay? Ms Ayling: - with the patient. Mr Eylander: And you didn’t press the MET button? Ms Ayling: No. Mr Eylander: And why was that? Ms Ayling: I – we had the conversation with the doctor not long prior to that and he said let them know. They weren’t too concerned as she’d been trending for the last number of days with a low blood pressure. They were aware and prior to that when Sue was in the room when the doctor came around, I asked them then if they wanted a bag of fluid for her -- 12 of 21 -- 13 blood pressure. And he said no, they’ll just leave it as overnight. And yes, so I recalled the conversation that we had with the doctor and I used my clinical judgement. I didn’t not escalate it. I did escalate it with the doctor. I just didn’t press the button because I didn’t feel, you know, it was, yeah, I used my clinical judgement. The patient was sitting up, talking with her family and I was escalating it regardless. Mr Eylander: And some 15 to 20 minutes – and this is from your statement – passed before Ms Mangubat returned? Ms Ayling: Roughly, I can’t remember exactly the time. [49] Ms Hull did not return to the room until after the doctor had called Ms Ayling back with further instructions. The response of the medical team further supports Ms Ayling’s claim that she exercised appropriate clinical judgement:22 Mr Eylander: And she returned at about 12:30? Ms Ayling: Thereabou – I can’t remember exactly when, sorry. Mr Eylander: But it was after – she returned after the doctor called you back? Ms Ayling: Yeah. I called the doctor. They said yep, they weren’t that concerned. She said she was going to let the other team – the rest of the team know. She would give a call back in about 10 minutes. In that time I had done her sugar level, I’d let – she called back. I let her know what that was. And they said, “Yep, just give her a stat-bag” and that went up. Mr Eylander: And so why -? Ms Ayling: And they’ll come around and review the patient when they had a chance. Mr Eylander: And while you were waiting for the doctor to call back, how did the patient present in terms of physical - ? Ms Ayling: She was asymptomatic. She was sitting up in bed talking with four / five family members around her. [50] While Ms Hull had asserted that Ms Ayling should have made a MET call at 11:45 am, she acknowledges that she was not there; not returning to the room until 12:15 pm at the earliest. In the period between 11:45 am and 12:15 pm, all Ms Hull had upon which to base this assessment was Ms Ayling’s own observations, and her recording of same, in the patient’s chart.23 22 Transcript of Hearing, 23 April 2020, page 10 [40] – page 11 [5]. 23 Transcript of Hearing, 23 April 2020, page 23 [15] – [25]. -- 13 of 21 -- 14 [51] Ms Hull’s evidence was that when she returned from her break, “…I observed the patient to be pale, less responsive and not as communicative as before.”24 [52] This directly contradicts the evidence of Ms Ayling, who instead insisted that the patient was “…sitting up in bed…” and “…talking and interacting with family members…”. Ms Ayling stated that:25 (c) with the exception of the low blood pressure reading, was otherwise completely asymptomatic – meaning that she was not exhibiting any other markers of deterioration, including: (i) she was a normal colour in her complexion; (ii) her oxygen levels were normal; and (iii) her temperature was within the normal range. [53] I prefer the evidence of Ms Ayling to Ms Hull. My reasons include Ms Ayling’s more detailed recall of her observations of the patient’s presentation and the fact of her continuity of patient care in the critical period between 11:45 am – 12:15 pm – a time when Ms Hull was absent from the room. I also note that neither Ms Hull nor Ms Mangubat themselves initiated a MET call, which surely would have occurred if they deemed that the patient was in imminent risk of harm.26 [54] I cannot rely on Ms Hull’s second-hand report of the either Ms Mangubat’s appearance of distress or account of Ms Mangubat’s exchange with Ms Ayling, in the absence of any direct evidence to support these claims. [55] In summary, I am satisfied by the evidence before me that Ms Ayling: • Acknowledged the warning on the machine (and did not dismiss it). • Decided to escalate the matter with the treating medical team, in advance of the patient’s blood pressure falling below the level tolerated by the medical team, namely 80; • Chose to escalate the matter to the treating medical team via a phone call, rather than a MET call (an option that was reasonably open to her exercise of clinical judgement, in the circumstances); • Immediately attempted to locate Ms Mangubat, who had the phone; • Maintained a line of sight to the patient, whilst continuing her work; • Observed no other indicators of patient deterioration; • Escalated her concerns to the treating medical team in a timely manner. This is informed by the doctor’s response not indicating “…any urgency in the Patient’s presentation, but instead waited 10 minutes before calling Ms Ayling back to 24 Exhibit 2, Statement of Ms Susan Hull, filed 20 April 2020, [14]. 25 Exhibit 1, Statement of Alison Ayling, filed 1 April 2020, page 3, [35]. 26 Transcript of Hearing, 23 April 2020, page 25 [20] – [45] and page 28 [15] – [20]. -- 14 of 21 -- 15 advise of the appropriate treatment.”27 The fact that neither Ms Hull nor Ms Mangubat determined to themselves make a MET call further supports Ms Ayling’s appropriate exercise of clinical judgement.28 [56] I find that Ms Ayling’s professional conduct on 8 May 2019 constituted a timely exercise of her clinical judgement, particularly in light of my findings at paragraph [44]. 2. Factual dispute – Ms Hull’s ANSAT assessment on 8 May 2019 Meeting between Ms Ayling, Ms Hull and Ms Diggins [57] Ms Ayling participated in a feedback session with Ms Hull and Ms Diggins, following the shift assessment. There is dispute between the parties as to what occurred at that discussion. [58] Ms Ayling asserts that she was asked why she didn’t make a MET call and, when she attempted to explain her reasons for not doing that, Ms Hull and Ms Diggins disregarded her responses.29 [59] However, Ms Hull’s recollection is that she:30 …told Ms Ayling I was informed and concerned the she failed to respond to a deteriorating patient in a timely manner and that I felt she had missed a deterioration marker for the Patient. I then said that I was informed and further concerned that she moved onto another patient before finally calling the medical team [60] With respect to whether or not she told Ms Ayling that she should have made a MET call, Ms Hull reflected:31 I don’t remember the exact words, but in talking with – and providing feedback to pa – to any person in an assessment in relation to escalating concerns, I would always use the parameters from notifying medical officer through MET calls. So I would have used both terms. [61] In cross-examination, Ms Hull conceded that she was unaware of the notes in the patient charts saying that the doctor was happy to tolerate a systolic blood pressure of 80 at the time she spoke to Ms Ayling and advised her that a MET call should have been made.32 [62] Ms Diggins’s recall of the content of the discussion is very limited, given the time that has elapsed and her peripheral role in it. 27 Applicant’s Closing Submissions, filed 19 June 2020, [51]. 28 Transcript of Hearing, 23 April 2020, page 25 [30] – [45]. 29 Applicant’s Closing Submissions, filed 19 June 2020, [54]; Exhibit 1, Statement of Alison Ayling, filed 1 April 2020, page 5, [57]. 30 Exhibit 2, Statement of Ms Susan Hull, filed 20 April 2020, [27]. 31 Transcript of Hearing, 23 April 2020, page 28 [45] 32 Ibid page 26 [15] – [35]. -- 15 of 21 -- 16 [63] Ms Hull stated that:33 …I did not feel as though Ms Ayling was properly engaging in the feedback session and did not display any insight into why there would be concerns with her conduct in the circumstances I described. I would describe her insight into the concerns raised to be alarming. [64] This view was shared by Ms Diggins, who said:34 …Ms Ayling lacked insight into the concerns raised… and lacked knowledge about the escalation process for deteriorating patients. I find these two things to be quite concerning. [65] Ms Diggins’s view was that: 35 Ms Ayling failed to provide any particular reason or excuse for failing to escalate the deteriorating patient’s condition in a timely manner. Her answers to Ms Hull’s questions were very vague and I did not feel as though she was able to see the big picture in terms of why this was important. [66] Ms Hull also recounted that Ms Ayling’s responses were brief and lacking in insight:36 Ms Bassingthwaighte: Did Ms Ayling explain to you why she hadn’t made a MET call? Ms Hull: Yes. Ms Bassingthwaighte: In the context of that feedback session? Ms Hull: Yes. Ms Bassingthwaighte: Would you consider that that constitutes engaging with your questions? Ms Hull: It was very one-worded answers. She said “It didn’t matter.” --- Ms Bassingthwaighte: I put it to you that Ms Ayling explained her rationale for the actions that she took and that you weren’t interested in what she had to say? Ms Hull: No, that incorrect. She did not clarify, she did not provide parameters, she did not give me any explanation which I would expect a normal – a – I would expect a registered nurse to be able to expand on their answers rather than “It didn’t matter.” --- 33 Exhibit 2, Statement of Ms Susan Hull, filed 20 April 2020, [27]. 34 Exhibit 6, Statement of Ms Amy Diggins, filed 20 April 2020, [12]. 35 Ibid [10]. 36 Transcript of Hearing, 23 April 2020, page 29 [20] – [30] and [40] – [45] and page 30 [25] – [35]. -- 16 of 21 -- 17 Ms Bassingthwaighte: Okay. Your statement that Ms Ayling lacked insight, now that’s prefaced on an assumption that Ms Ayling was wrong, isn’t it? Ms Hull: No, it was prefaced on the assumption that she did not provide any clarification around her timely escalation of deterioration. Ms Bassingthwaighte: But you’d be aware that Ms Ayling disagrees with you in that respect, she says that she did provide that clarification? Ms Hull: And I – I’m [indistinct] aware in that we’re her, which would indicate to me that Alison had disagreed. Ms Bassingthwaighte: If Ms Ayling was right, if Ms Ayling had handled the matter appropriately, she’s entitled to challenge you or disagree with you when you raise your concerns, isn’t she? Ms Hull: Correct. [67] I believe it is most likely that Ms Ayling’s failure to demonstrate the required ‘insights’ into her professional conduct in the feedback session was due to her firmly held view that she had acted appropriately in the timely escalation of the patient, taking account of all the relevant factors (including the patient notes, the contents of which Ms Hull was unaware at the time). [68] That Ms Hull and Ms Ayling each held to their different views as to the ‘most appropriate’ escalation path (MET call or phone contact) in the circumstances may have created an impression that Ms Ayling ‘lacked insight’. I am just not satisfied that is the case. [69] My observation of Ms Ayling as a witness is that she is naturally laconic. Not evasive. Not a unique personal characteristic amongst Far North Queenslanders. [70] I also note that the assessment began around 7 am37 and the feedback session to discuss it was held at about 2:30 pm.38 I accept that after working for seven and a half hours, in a performance assessment construct that was “inherently stressful”,39 confronted with a perception that her attempted explanation was disregarded, Ms Ayling may also not have prosecuted her professional position as avidly as she may have otherwise. [71] Ms Ayling said that she made contemporaneous notes that same day, shortly after the conclusion of the meeting. She did so “Because I had a feeling that they were going to try and use something against me, so I’ve made record of it straight away.”40 Ms Ayling relied on these notes when preparing her detailed statement.41 37 Exhibit 2, Statement of Ms Susan Hull, filed 20 April 2020, [6]. 38 Exhibit 1, Statement of Alison Ayling, filed 1 April 2020, page 4, [51]. 39 Ibid page 1, [11]. 40 Transcript of Hearing, 23 April 2020, page 17 [1] – [20]. 41 Ibid [1]. -- 17 of 21 -- 18 [72] It is decidedly unfortunate that the three meeting participants failed to understand each other. In my opinion, that frustrated communication has resulted in an errored ANSAT Assessment, with respect to Ms Ayling’s professional conduct on 8 May 2019. ANSAT Assessment [73] Ms Hull contended that the ANSAT assessment result was based on both the timeliness of Ms Ayling’s escalation response and her response at the feedback session. She stated that the score of 2 (below acceptable / satisfactory standard) for two criteria was determined to be the appropriate designation in circumstances where: 42 • The patient’s systolic pressure had dropped below 90; • Ms Ayling moved on to another patient, despite noting that the patient’s reduced systolic blood pressure levels; • Ms Mangubat had to prompt Ms Ayling to escalate the patient’s condition; • Ms Hull’s immediate observations of the patient so shortly after the patient’s condition was escalated; and / or • Ms Ayling did not exhibit any insight into her conduct regarding the patient, the reasons why Ms Hull would be concerned about same and the importance of responding in a timely fashion to a deterioration marker. [74] In her Statement of Facts and Contentions, Ms Ayling asserted that:43 (a) Ms Hull was wrong to conclude that Ms Ayling’s failure to make a MET call…constituted a failure to respond to a deteriorating patient in a timely manner; (b) Ms Hull was wrong to conclude that the above interaction evidences that Ms Ayling’s performance was ‘below the acceptable / satisfactory standard’ in respect of the following criteria: (i) “Accurately analyses and interprets assessment data to inform practices”; and (ii) “Delivers safe and effective care within their scope of practice to meet outcomes”. (c) Ms Hull was wrong to conclude that Ms Ayling’s overall performance was ‘limited’. [75] Ms Ayling argued that Ms Hull’s reasons for attributing the failed criteria are unsound. Aspects of Ms Hull’s own evidence under cross-examination showed that she: 44 • Was not aware that the patient notes reflected that the medical team were happy to tolerate a systolic blood pressure to 80; • Was not present in the room between 11:45 am – 12:15 pm at the earliest and so 42 Respondent’s Closing Submissions, filed 9 July 2020, [20] – [21]. 43 Applicant’s Statement of Facts and Contentions, filed 2 March 2020, [16]. 44 Applicant’s Closing Submissions, filed 19 June 2020, [61]. -- 18 of 21 -- 19 did not observe the patient’s presentation in that period; • Was not aware that Ms Mangubat was not in the room between 11:45 am – 12 pm at the earliest; • Directly observed the patient 15 – 30 minutes after Ms Ayling had escalated the patient’s care to the medical team; and • Agreed that Ms Ayling was entitled to resist her proposition that she had not responded in an appropriate, proportionate and timely way to the patient’s care in the circumstances. [76] In paragraphs [25] – [72] of this Decision, I have explained my consideration of the various findings of fact that support Ms Ayling’s claim that she escalated the patient’s care to the treating medical team in an appropriate and timely manner. These considerations need not be again repeated here. It follows though, that those findings of fact as to Ms Ayling’s prudent exercise of her clinical judgement in the circumstances also informs the question of whether the ANSAT assessment scores of 2 for two criteria was objectively sound. [77] I find that Ms Ayling’s failed ANSAT assessment scores were based on errored or omitted information as to her professional conduct on 8 May 2019 and that those perceptions further infected the subsequent feedback session that ensued. 3. Factual dispute – Factors taken into account by Ms Cutler [78] Ms Cutler received the results of the ANSAT assessment, together with the recommendation from Ms O’Shea as to the terms of the appropriate direction to Ms Ayling that is subject of this dispute. [79] I have determined that the ANSAT assessment results were based on errored or omitted information - and that Ms Ayling’s professional conduct on 8 May 2019 instead constituted an appropriate exercise of her clinical judgement in the circumstances. Therefore, the failed ANSAT assessment results cannot be relied on in the issue of the Direction to Ms Ayling. [80] In closing, the CHHHS referred to numerous other factors said to have been considered by Ms Cutler in her decision to issue the Direction:45 When making the decision on 10 July 2019, the professional standards and factors such as the protection of patients is of paramount importance. The decision-maker noted the circumstances of the assessment, together with the “pattern of failed ANSAT assessments in differing and supported clinical settings over an extended period of time.” The decision maker also considered other factors such as whether the Appellant was working within the RN generic level statement, the proposed recommendation by Andrea O’Shea, whether reasonable steps were taken to advise the employee that her performance was not meeting the required standard and whether she was provided with 45 Respondent’s Closing Submissions, filed 9 July 2020, [24]. -- 19 of 21 -- 20 appropriate clinical support and preparation in advance of the assessments. The circumstances posed a genuine safety issue, especially for an experienced registered nurse, and a significant departure from professional standards and, therefore, places patients at risk of harm. [81] The claim of ‘other factors’ is rebutted by Ms Ayling, who notes that:46 There is no evidence of the decision-maker, Ms Cutler, having considered these matters. They are not reflected in her letter to the Applicant of 10 July 2019, and, with the exception of acknowledging that she relied on the recommendation of Ms O’Shea, Ms Cutler does not identify that she had regard to these factors in her statement of 20 April 2020. [82] Ms O’Shea was not called as a witness in these proceedings, so no addition elaboration or exploration as to the basis of her recommendation to Ms Cutler is available beyond that already provided. [83] On the basis of the available testimony, material and submissions provided by the parties in the hearing of this matter, I agree with the conclusion drawn that: 47 While the protection of the public is of paramount importance, there is no clear or cogent evidence before the Commission that the Applicant presents a risk to the public associated with her being permitted to practice without restriction. Indeed, the Respondent has not been able to articulate the risk that it considers the Applicant presents to the public (or where her practice is said to be deficient), in support of its decision to implement the Management Framework and to issue the Direction. [84] In light of all that, what remains is the question of whether or not the Direction issued was reasonable in the circumstances. 4. The ‘reasonableness’ of the Direction issued on 10 July 2019 [85] Ms Ayling has submitted that:48 A direction that is based on a mistake of fact cannot be reasonable. A direction that involves an exercise of discretion, where that discretion is not exercised appropriately, will not be reasonable. [86] As I have earlier noted, there is no dispute that the Direction issued to Ms Ayling was lawful. [87] In her Statement of Facts and Contentions, Ms Ayling concluded that:49 …the direction is not a reasonable direction, in circumstances where there is no sound, defensible and well-founded reason for the CHHHS to conclude that Ms Ayling is unable to safely perform 46 Applicant’s Closing Submissions in Reply, filed 24 July 2020, [10]. 47 Ibid [12]. 48 Respondent’s Closing Submissions, filed 9 July 2020, [11]. 49 Applicant’s Statement of Facts and Contentions, filed 2 March 2020, [17]. -- 20 of 21 -- 21 the requirements of her role, having regard to Ms Ayling’s performance on the ANSAT Assessment of May 2019. [88] As demonstrated in my reasoning above, there were errors and omissions in the facts relied upon in the assessment of Ms Ayling’s professional conduct on 8 May 2019. This then resulted in an incorrect perception that she lacked insight into the appropriate and timely escalation of patient care. The frustrated communication attempt between the participants in the feedback session failed to elicit a full opportunity to both hear and to be heard. The CHHHS’s determination to press on meant that a recommendation was ultimately presented for Ms Cutler’s consideration, in her capacity as Executive Director of Nursing and Midwifery Services. That Direction was that Ms Ayling take part in a further 8 weeks of supported practice including a further 3 assessments. [89] I find that the Direction was not reasonable - but instead emerged from an unstable foundation of errors of fact, infected perception and inadequate communication as to the different perspectives. Conclusion [90] I have considered all the evidence, material and submissions in determining this industrial dispute. [91] I absolutely acknowledge that the CHHHS has a duty of care to all patients. However, I find that Ms Ayling’s professional conduct on 8 May 2019 was an appropriate and timely exercise of her clinical judgement in the circumstances – and poses no such risk. [92] The question the Commission was required to determine in these proceedings was whether or not the CHHHS’s Direction that Ms Ayling undertake a further 8 weeks of supported practice, with a further 3 ANSAT assessments, is a reasonable direction with which Ms Ayling is required to comply. [93] The answer to that question is that CHHHS’s Direction to Ms Ayling was not reasonable in the circumstances. On that basis, the Direction should be withdrawn. [94] I order accordingly. Orders: The CHHHS’s Direction issued on 10 July 2019 is to be withdrawn. -- 21 of 21 --