Aird v Department of Community Safety, Queensland Ambulance Service [2013] QIRC 185

CITATION: Ciranoush Aird AND Department of Community Safety, Queensland Ambulance Service (TD/2012/11) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Ciranoush Aird AND Department of Community Safety, Queensland Ambulance Service (TD/2012/11) DEPUTY PRESIDENT BLOOMFIELD 6 December 2013 DECISION Background [1] This decision concerns an Application for reinstatement filed by Ms Ciranoush Aird who was terminated by the Department of Community Safety, Queensland Ambulance Service (QAS/the Respondent) on 25 January 2012 following that agency's investigation of an incident which occurred at the Townsville Hospital on 18 October 2011. At the time of her termination Ms Aird was an Advanced Care Paramedic. The Incident [2] On the evening in question Ms Aird was working a night shift with another Advanced Care Paramedic, Mr Paul Allen. At approximately 3.51am a Communications Centre Operator (CCO) employed by QAS in its Call Centre contacted Ms Aird by radio. The following discussion took place: [3] In the course of her evidence Ms Aird said Patient A was a particularly difficult patient. She had a history of drug seeking behaviour, abusing QAS resources, was Hepatitis B and C positive and was often very difficult to manage - at times physically and verbally threatening paramedics and police officers. She constantly feigned illnesses and symptoms, and even being unconscious, in seeking drugs. [4] Under cross-examination Ms Aird said she had dealt with Patient A on approximately four occasions prior to 18 October 2011, with multiple visits (at least two – possibly three) on one day in February 2010. When it was put to Ms Aird that she had already formed the view, when taking the radio call, that Patient A was probably feigning illness or symptoms again, Ms Aird responded by saying there was "always the potential with patients of that nature". [5] Ms Aird said that use of the phrase "I'll give her a kick up the arse" was intended to suggest that she would not waste time unnecessarily with the patient but, rather, would take her directly to hospital. This was because if Patient A was not taken to the Hospital on the first occasion she would call QAS again and again. [6] When Patient A came to the door she was complaining of back pain. Ms Aird assessed the patient, predominately visually, and offered Panadol which was refused. She then invited the patient into the ambulance Ms Aird 121 Ciranoush speaking. CCO How are you Ciranoush? Ms Aird G’day mate. How are you going? CCO Ready for another job? Ms Aird Umm in a couple of minutes yeah. CCO That sounds good, friendly neighbourhood, Patient A. Ms Aird Oh for fucks sake. CCO Up in Wulguru. Ms Aird Wulg – alrighto. What’s the address love? CCO Umm, you’re going to (street address), number 5. Ms Aird And it’s the normal abdo pain? CCO We’ve got generally unwell, she’s called four or five times now. Ms Aird Arr no worries, I’ll give her a kick up the arse. CCO No dramas. Just let me know, you’ve got a couple of minutes if you want to, if you’ve got paper work or that to do. Ms Aird Arr Paul has just dropped it in. What number (street address) was it? CCO Number 5. Ms Aird Number 5, alright no worries. CCO Alright responding mate, thanks. Ms Aird Ok bye. -- 1 of 12 -- 2 so she could be transported to the Hospital for assessment. Officer Allen drove the vehicle and Ms Aird sat in the rear with the patient. [7] On the way to the Hospital the patient took off her seatbelt and started to roll around the floor in the back of the ambulance. She had also stated to rifle through draws in the ambulance and attempt to open the fridge, all despite instructions to resume her seat. At one point the ambulance had to pull over so that Ms Aird could return the patient to her seat. [8] Just before 4.18am the ambulance arrived at the Hospital. CCTV footage, taken from a camera positioned outside the Emergency Department, revealed the following sequence of events and the time those events occurred: Event No. Approximate Time Event 1. 04:17:59 An ambulance arrives at the entrance to the Emergency Department of the Townsville Hospital. 2. 04:18:24 Mr Allen gets out of the ambulance and opens the side door of the ambulance. 3. 04:18:32 Mr Allen opens the external sliding doors to the Emergency Department of the Hospital and stands to the side of the doors. 4. 04:18:39 Ms Aird and Patient A walk into the foyer of the Emergency Department (via the external sliding doors, an “airlock” and internal sliding doors) followed by Mr Allen. Ms Aird engages in discussion with the nurse on duty, Ms K Morris. 5. 04:18:51 Mr Allen and Patient A move to the right of the screen (into a corridor) and disappear from the view of the camera. 6. 04:20:59 Ms Aird, Ms Morris and Mr Allen walk across the foyer and to the right of the screen and out of camera view. 7. 04:23:18 Ms Aird, by holding on to the Patient A’s wrists and walking backwards, drags Patient A across the foyer floor from the right of the screen (i.e. from the corridor) through the foyer and into the airlock space between the internal doors and the external doors to the Emergency Department. 8. 04:23:29 While in the airlock, Ms Aird releases Patient A’s wrists causing the upper part of her body and head to drop to the floor, along with her arms. 9. 04:23:32 While in the airlock, Ms Aird bends over Patient A while Ms Morris holds Patient A’s handbag. 10. 04:23:35 Ms Aird stands up, takes hold of Patient A’s right wrist and drags her to a position outside of the external doors to the Emergency Department, where she drops Patient A’s wrist with a downward thrusting/throwing motion. 11. 04:23:41 Ms Morris, from in the airlock, brings Patient A’s handbag to Patient A outside of the external doors to the Emergency Department. 12. 04:23:44 Ms Aird and Ms Morris return into the Emergency Department. 13. 04:23:46 Patient A stands up and walks past the external doors to the Emergency Department into the airlock, stopping in front of the internal doors. 14. 04:23:51 Patient A sits down in the airlock, with her knees and ankles on the ground, buttocks partially raised. 15. 04:24:15 Patient A stands up in the airlock and attempts to walk into the Emergency Department but the internal doors close. 16. 04:24:30 Patient A gets down on her hands and knees in the airlock, with her buttocks raised in the air and head resting on her handbag, with her body facing the external door. 17. 04:24:41 Ms Aird walks from inside the internal doors to the Emergency Department, into the airlock and kicks Patient A with her right foot on Patient A’s right buttock. 18. 04:24:45 Ms Aird walks around to in front of Patient A, grabs Patient A’s handbag, takes the handbag off Patient A who was still holding the handbag, and drops the handbag outside the external doors to the Emergency Department. 19. 04:24:52 Patient A then stands up and walks outside the external doors to the Emergency Department to where her handbag was dropped by Ms Aird. 20. 04:24:54 Ms Aird picks up Patient A’s handbag and hands it to Patient A. Ms Aird then points with a raised arm towards the left of the screen. 21. 04:24:57 Patient A walks off to the left of the screen and out of view of the camera. 22. 04:24:59 Ms Aird walks back into the Emergency Department. -- 2 of 12 -- 3 [9] Ms Aird said that in the 2-3 minute period between events four and six above she completed a handover of Patient A to the triage nurse, Ms Morris. In undertaking the handover she informed Ms Morris that the patient: • had complained of back pain; • was exhibiting "normal behaviour for her"; • had been offered Panadol but had refused it; and • had no motor sensory deficits as observed and walked unassisted and without difficulty. At this point she formed the view that the Patient handover had been completed. [10] At around this time (event six) she heard a loud noise coming from the toilet. When she went into the toilet she observed Patient A lying on her side, moaning, grimacing and flickering her eyelids. After visually assessing Patient A's breathing, colour and/or signs of injury, she formed the view that the patient had feigned a collapse. As such, she gave the patient, who was conscious in her opinion, a range of instructions including to sit up, stand up, open her eyes etc. [11] However Patient A did not comply with any of these instructions and continued to feign being unconscious or having collapsed. [12] Ms Aird said that because she did not wish to remain in the confined toilet space with the patient given her behaviour and risks associated with her conditions (as above) she placed her hands around the patient's wrists "and safely and swiftly slid the patient along the floor by the wrists using the patient's satin dressing grown to slide along the floor. The patient is quite light in weight and so I was able to slide her without causing any trauma. This was done in the same way that an ill patient would be moved and the manner used was in accordance with QAS slide sheet and manual handling training…". "Rather than leave the patient in the corridor outside the toilet where she may cause someone to trip and harm her or others, I continued towards where the triage nurse and officer Allen were standing. I recall that this was in the general waiting area where there was space for the patient.". [13] Ms Aird said she asked Ms Morris, in words to the effect, "what do you want me to do?". She recalled Ms Morris replied with words to the effect "well, if she doesn't want to be here…". [14] Understanding this to be reference to the patient's unwillingness to follow instructions and be co-operative she replied to Ms Morris, in words to the effect, "well, do you want her outside?" as a result of which Ms Morris replied with words to the effect "yeah, sure". Ms Norris proceeded to hit the safety button to open the entrance to the emergency doors. [15] Ms Aird said she was surprised by Ms Morris' decision to move the patient outside. However, she complied with her request as she believed that this was what Ms Morris wanted. She recalled lowering the patient to the floor at some point between the two glass doors because she had formed the view the patient was still feigning collapse/unconsciousness and was effectively a "dead weight". [16] Ms Aird also said (see Exhibit 1): "26. … At this point the Patient and I were just inside the second sliding door (that led immediately outside), the Patient then momentarily ceased the feigned collapse and became somewhat responsive. However, she remained uncooperative and I then continued with her outside. 27. Ms Morris, who had opened the doors, followed me outside and dropped the Patient's handbag next to her, which she had left inside the ED. 28. At all times when dealing with the Patient, both at this time and in the toilet, I was extremely conscious of my personal safety. This was partly due to the Patient's history of unpredictable and sometimes threatening behaviour, the previous assaults had been subjected to and a previous threat to me by the Patient that 'I'm gonna get you, you f**king bitch', and the fact of her being hepatitis B and C positive. 29. After I had taken the Patient outside, she proceeded to stand up and walk back to the ED entrance doors. They were opened for her and she walked through the first one and the set herself down on the floor between the two double doors. At this time she was on her knees, bent forward with her head on the ground and her bottom in the air facing where Officer Allen, Ms Morris and I were standing. I then walked toward the Patient and as I reached her, I nudged her on the bottom with my foot. I did not pull back my leg prior to connecting with the Patient's bottom, but instead just used the swing of my normal stride or walk in connecting with the Patient's bottom to try and gain the Patient's attention and co-operation. At this time, the Patient was blocking the only entry to the ED. I was also concerned about the Patient being on the floor near these doors because the motion sensors are at hip -- 3 of 12 -- 4 height. If the Patient had moved between one of the sets of doors whilst lying down, it is possible that the doors might have closed on her. I had previously experienced them closing on stretchers. 30. At some stage after this, the Patient eventually got up off the floor, without any assistance from anyone, and left the ED and the Hospital altogether. I followed the Patient outside, where the Patient then asked where she could find a taxi. I directed her to the taxi rank around the corner, approximately 10 meters away.". [17] At approximately 4.30am Ms Aird contacted the CCO by radio, at which time the following conversation occurred: CCO Yellow. Ms Aird Hi its Ciranoush how are you? CCO I’m sensational. Ms Aird Are you cause Patient A has already left the hospital. CCO Seriously. Ms Aird Yep. She was assisted out. CCO Did she play up, up there? Ms Aird Yeah. Umm… she played up in ambulance as well. Umm… you know the usual refuse to sit down. CCO Usual shit yeah. Ms Aird Riffling through the draws, umm, trying to get into the locker in the cabinet, umm, wouldn’t put her seat belt on, wouldn’t sit still, laying on the floor, crawling around on the floor. CCO Excellent. Ms Aird Things like that, umm, and then tried to pull a, umm, stint in the toilet at the hospital, you know like ‘oh I’ve fallen, I can’t get up’ [undecipherable] 'I’m unconscious' thing umm which obviously didn’t work for me when I still had my gloves on so I assisted her and she, she left, was escorted out (laugh). CCO Excellent. Ms Aird Something like that. CCO Oh well, if she calls again the police can deal with her then. Ms Aird Yeah there is nothing wrong with her. It’s her normal drug withdrawal, drug seeking behaviour. CCO Ok. Ms Aird: It’s, there is absolutely nothing, and um, as soon as she realised that she was being taken out of the hospital, out of the building, like out of ED, umm, then she started sqawking, you know, blar, blarda, and she’s done the whole, well if you won’t treat me then where is the taxi rank then? So obviously it can’t be that bad. CCO Oh well good on her. Ms Aird Yeah so there you go. That’s my [undecipherable]. CCO Pain in the arse here anyway [undecipherable]. Ms Aird Yeah that’s my little bit of agro umm for the night done. CCO Well I have spoken to the police about her so if we get a call they can deal with her. Ms Aird Good, yes, cool, cool, cool. If only she was around so I could tell her, but umm, she’s literally only wearing knickers and a dressing gown again, umm, so, I wouldn’t be surprised if she pulls one of those ‘unconscious, unknown, query deceased persons’. CCO Yeah, she’d be like. Ms Aird Yeah like she’d be like lying by the side of the road somewhere probably near the hospital ground, umm. CCO [Undecipherable] … ring her in and… Ms Aird Yep that’s right, ‘oh are you Ok love [undecipherable] Oh fuck off. CCO Laughter, go and pimp yourself out again. Ms Aird Yep that’s right, go on, bugger off. CCO Alright. Ms Aird: Yeah so I just thought I would let you know that, yeah, she was once again going through the ambulance draws. CCO Yeah. Ms Aird And I told her three times, umm, not to do it and umm, had to hold her wrists as well, you know, just her usual shit. CCO Yep. Ms Aird Just her normal crappy little attention seeking behaviour. CCO What a champion we have eh? -- 4 of 12 -- 5 Ms Aird Absolutely. I’m not going to miss her at all. CCO We were just talking about her, she must have just gotten out of jail, cause I know, when she went away for a little while. Ms Aird Yeah, yeah, yeah she did so she started back up again. CCO Good on her, oh well, she might be going back for another one-way ticket. Ms Aird Yeah hopefully. CCO Alright ok. Ms Aird Just thought I might let you know darling. CCO Yep no worries mate. Ms Aird Ok see ya darl. Bye. Complaint, Investigation, Termination [18] On 21 October 2011 Mr Rodney Walz, Assistant Commissioner of the Northern Region of QAS, received a telephone call from the Acting Operations and Nursing Director at the Emergency Department of the Townsville Hospital. She informed him that a staff member of the Hospital wished to make a complaint about a QAS Paramedic, ultimately identified as Ms Aird. A copy of the complaint, from Ms Morris, was emailed to him on the same day. [19] On her next day of work (24 October 2011) Ms Aird was asked to attend a meeting, with a support person, with QAS's Duty Operations Supervisor and the Duty Officer in Charge. At this meeting she was directed to perform station duties pending further investigation of the complaint. On the following day-after Mr Walz viewed the CCTV footage, spoke to the Ethical Standards Unit (ESU) of the Department of Community Safety and with the Deputy Commissioner of QAS - Ms Aird was suspended on full pay pursuant to s. 18M of the Ambulance Service Act 1991 (the Ambulance Act). [20] Ultimately, after an investigation by an Officer of the ESU and show cause proceedings, Ms Aird's employment was terminated by Deputy Commissioner McNamara on 25 January 2012 for misconduct under s. 18A(1)(b) of the Ambulance Act. She was paid four weeks' pay in lieu of notice. [21] It is that decision which Ms Aird seeks to "appeal" by way of her Application seeking reinstatement to her former position. The Applicant's case [22] Counsel for Ms Aird, Mr S McLeod, acknowledged that his client's action of dragging Patient A by the arms out of the toilet into the airlock area of the entrance of the Emergency Department was inappropriate. He also highlighted that Ms Aird rightly conceded during cross-examination that she should not have done what she did. However, notwithstanding those concessions, Mr McLeod argued that the behaviour of Ms Aird did not constitute "misconduct" as that term was used in s. 18A of the Ambulance Act. [23] Section 18A of the Ambulance Act relevantly provides: "Grounds for discipline (1) The chief executive may discipline a service officer if the chief executive is reasonably satisfied the officer has – (a) performed the officer's duties carelessly, incompetently or inefficiently; or (b) been guilty of misconduct or … (5) In this section – misconduct means – (a) inappropriate or improper conduct in an official capacity … Example of misconduct – victimising another service officer in the course of the other officer's employment in the ambulance service". [24] Mr McLeod said the word "misconduct" is defined to mean "inappropriate or improper conduct in an official capacity". Accordingly, "misconduct" must involve something more than mere negligence, error of judgement or innocent mistake: O'Connor v Palmer (No1)1 at 401 per Spicer CJ and Dunphy J – citied with approval by 1 O'Connor v Palmer (No1) [1960] 1 FLR 397. -- 5 of 12 -- 6 Ashbury C in Queensland Teachers' Union and State of Queensland2 at [97] and Fisher C in Bruce Campell Gordon and Department of Corrective Services3 at [96] to [103]. [25] In his written submissions Mr McLeod also said: "36. Similarly, in Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 Kirby P stated, when considering the statutory test of 'misconduct in a professional respect' contained in s. 27(1)(c) of the Medical Practitioners Act 1938 (NSW), at p200: '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.'. Kirby P went on, at pp200-201, to examine the approaches taken by courts in England and in the United States when considering the concept of misconduct and ultimately endorsed the views enunciated by the Commonwealth Industrial Court in O'Connor: see also Medical Board of Queensland v Bayliss [2000] 1 Qd R 598. 37. In Mathieu v Higgins [2008] QSC 209 Daubney J had cause to consider the meaning of the term 'misconduct' as found in the Queensland Ambulance Service Discipline Policy ('the Policy') issued under s. 41 of the AS Act. 'Misconduct' was defined to mean 'disgraceful or improper conduct in an official capacity': s. 10(a) of the Policy. His Honour endorsed the observations made by Kirby P in Pillai (at [21]) and concluded: '[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 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.'. 38. The respondent contends that the standard of misconduct imposed in this case is different because the definition of misconduct found at s. 18A(5)(a) is contained in a statutory context and carries greater force than the definition of misconduct contained in the Policy which was the subject of consideration in Mathieu. With respect this submission is misconceived. Arguably the Policy would fall within the ambit of a statutory instrument and the characterisation of misconduct in Mathieu therefore carries the same force as found in s. 18A(5)(a) of the AS Act: see s. 7(3) of the Statutory Instruments Act 1992 and Cuttler v Browne [2010] QCA 346 at [33]. In any event, the reasoning of Daubney J had specific regard to authorities which considered 'misconduct' in a legislative context, such as presently found in the AS Act. 39. Therefore it follows that in order to invoke s. 18A(1)(b) the misconduct must be shown to be deliberate or serious negligence to the point of indifference. In this instance, the conduct does not rise to that point. The evidence demonstrates that the applicant exhibited carelessness and/or incompetence but it does not evince the deliberate departure from accepted standards or serious negligence to the point of indifference which would ordinarily be required in order to characterise her actions as 'misconduct': Mathieu at [36].". [26] In expanding on the point made in the paragraph immediately above, Mr McLeod submitted that Mr McNamara was initially of the view that Ms Aird's conduct "went across both" ss. 18A(1)(a) and 18A(1)(b) but ultimately determined that the latter section constituted the "best fit" as it "breached our Code of Conduct in a very basic 2 Queensland Teachers' Union and State of Queensland (TD/2008/150) - Decision <http://www.qirc.qld.gov.au> 3 Bruce Campell Gordon and Department of Corrective Services (TD/2008/31) - Decision <http://www.qirc.qld.gov.au> -- 6 of 12 -- 7 way". In his submission the conduct which QAS had concerns about, which was the subject of the disciplinary proceedings, must fall within either ss. 18A(1)(a) or 18A(1)(b) but not both. [27] Further, in Mr McLeod's submission, the fact QAS proceeded under s. 18A(1)(b) was of considerable significance. This was because the whole of the decision making process, from commencement to the decision to terminate, miscarried because the conduct complained of could not amount to misconduct for the reasons set out above. This was a relevant consideration the Commission should have regard to under s. 77(d) of the Act. [28] Mr McLeod also stressed that Ms Aird conceded that she overstepped her role and responsibility by her conduct on the morning in question. At no stage had she ever sought to advance a contrary point. Further, she had always been regretful of her actions and, in that sense, contrite. Her conduct was also out of character. [29] He said the magnitude of her conduct was clearly brought home to Ms Aird when she was interviewed about the incident on 24 October 2011. [30] In that regard, Ms Aird identified a number of factors, both personal and work related, which caused her to become overly frustrated with Patient A's conduct. Importantly, Ms Aird always maintained that such factors did not excuse her decision-making process and actions on the day in question. Nonetheless, the mitigating factors identified by Ms Aird in her submissions to the Respondent during the show cause process and during her evidence were relevant to a consideration of why she acted in the manner she did towards Patient A. [31] Mr McLeod said the incident had to be viewed as a "one off" and the relevant enquiry the Commission had to make was "Does the punishment (termination of employment) fit the crime?". The case for the Respondent [32] Evidence on behalf of QAS was provided by the following persons: • Mr Rodney Walz, Assistant Commissioner of the Northern Region of QAS; • Mr Mark Champion, Principle Investigator, ESU, Department of Community Safety; • Mr Christopher Broomfield, Assistant Commissioner, North Coast Region, who was acting in the position of Deputy Commissioner of QAS during part of the show cause process involving Ms Aird; • Mr Anthony King, Director Operations, Regional Liaison, who provided support to Mr McNamara during the period when he (McNamara) was making his decision regarding Ms Aird's continued employment; and • Mr Leo McNamara, Deputy Commissioner of QAS at the relevant time. [33] Of these persons, the evidence of Mr McNamara is the most critical in relation to the matters I am required to consider in deciding Ms Aird's Application for reinstatement. In that respect, the following evidence given by Mr McNamara is worth highlighting. [34] In considering the issue of Ms Aird's continued employment, in light of the incident of 18 October 2011, Mr McNamara said he took into consideration the matters raised by Ms Aird's solicitor as mitigating factors in her reply to Mr Broomfield's show cause letter. These factors were: • Ms Aird's otherwise unblemished 10 year employment history; • her high level of performance; • her competence and dedication; • her positive attitude to work and treatment of patients; and • the fact that the incident of 18 October 2011 was a one off incident that was entirely out of character. [35] After giving full consideration to these factors he came to the conclusion that none of them were sufficient to excuse Ms Aird's conduct or militate against the termination of her employment. In particular, he considered that: • of Ms Aird's 10 years of service, less than four years was in the position of Advanced Care Paramedic. Most of what she described as "service" was in her capacity as a student or honorary paramedic; and • Ms Aird's conduct on 18 October 2011 was of such gravity that little weight could be placed on her previous performance when resolving this disciplinary matter. [36] Mr McNamara said he also considered a range of other factors which Ms Aird said contributed to her stress around the time of the incident. These factors included: • fatigue, as a result of being on the fourth shift in her roster cycle; -- 7 of 12 -- 8 • her impending move from the northern region back to her home in the south east region; • her mother's health issues; • a previous occasion when Ms Aird was assaulted by a patient (who spat in her eye); • her previous interactions with Patient A; • her desire to "fix" the situation; • her belief she was acting under the direction of Ms Morris; and • her attendance at a particularly difficult and distressing suicide in the week prior to 18 October 2011. [37] Mr McNamara said that whilst regrettable, he did not believe those stress-causing factors justified, or explained, Ms Aird's conduct towards Patient A. In reaching this conclusion he considered the following: • it was Ms Aird's decision to present for work for the shift in question despite her fatigue; • Ms Aird's return to the south east region was at her own request; • while Ms Aird's mother's circumstances were unfortunate, she had access to the QAS Employee Support Program and should not have presented for work if there was a real risk that her ability to provide patient care was compromised; • a paramedic who has been previously assaulted should demonstrate some caution towards difficult patients. The evidence indicated that Ms Aird was in no way frightened of Patient A but, rather, she went out of her way to engage with the patient when no such engagement was justified or necessary; • Ms Aird's previous interactions with the patient did not mitigate against her conduct; • Ms Aird's desire to "fix" the situation did not justify conduct outside of her scope of practice; • the nurse had no authority to direct Ms Aird, nor was there any evidence of any such direction; and • while he sympathised with Ms Aird regarding her attendance at a particularly distressing suicide, she had access to the Employee Support Program and should have sought appropriate guidance and/or counselling if there was a real risk that her ability to provide patient care was compromised. [38] Mr McNamara also considered that there was no alternative to the penalty of termination of employment. In some instances, it may be appropriate to reduce a paramedic to a lower classification. However, this would still have required Ms Aird to deal with patients and he had no confidence that a similar event would not occur in the future. The position of paramedic is a position of trust and he considered that neither he, nor the QAS, possessed the requisite trust in Ms Aird to perform the duties required of her. Her conduct on 18 October 2011 was unacceptable to QAS and he believed that it would (also) be unacceptable to the public. [39] In the course of his letter of 25 January 2012 to Ms Aird's solicitor, in which he terminated Ms Aird's employment, he rejected the claim that Ms Aird was of the view she had handed-over the patient and was simply carrying out the instructions of Ms Morris. He stated that even if he was of the view that Ms Aird believed she was carrying out "instructions" (which he was not) there were a variety of other options open to her. He said "the options she chose and the manner which she carried it out was completely inappropriate and constitutes misconduct. I also note your client does not indicate she was instructed to kick the Patient in the buttocks.". [40] His letter then continued: "It is my view, despite your submissions to the contrary, that your client's conduct was not in accordance with anything the QAS would consider to be appropriate and normal. The fact of this matter is that your client's actions in dragging the patient out of the toilet area, through the ED area, then into the airlock, and then returning through the airlock doors and kicking the patient in the buttocks are so far removed from normal accepted standards and behaviour that it constitutes a serious deviation from what I would expect of a professional employee. These actions do constitute misconduct and I can find no training offered by the QAS which would indicate to employees that this would be acceptable, given the circumstances your client was faced with. It is clear in the manual handling material produced by QAS that the sliding of a patient, in the manner that your client did, is neither indicated nor clinically appropriate. I am reminded each time I view the video evidence of this matter that there was nothing clinically, medically, or behaviourally appropriate about what occurred. I am of the view that your client's behaviour would be completely unacceptable to a reasonable QAS employee and a reasonable member of the public. Accordingly, I reject your submissions that I should consider a less serious penalty in this matter due to your client's work history or for any other reason. I also do not agree with your submissions regarding the disciplining of another officer in the QAS. It is not appropriate to comment in this letter about another employee and another decision maker, suffice to say that each case is evaluated on the particular set of circumstances that are involved. -- 8 of 12 -- 9 In considering an appropriate penalty I have found that your client's actions failed to meet the expectations set by the Agency and contradict the core purpose of her role. As such, I find it untenable to continue her employment with the Agency. In the circumstances, the QAS no longer has confidence in her ability to safely carry out her duties without risk to patients and in compliance with both the Code of Conduct and the provisions of the Ambulance Service Act 1991. I believe her unacceptable behaviour has severely damaged the trust and confidence her peers and management team have in her ability to perform her role. For these reasons I have determined that the disciplinary action to be taken against your client will constitute termination of her services, effective immediately.". Considerations, Findings and Conclusion [41] Although I have not referred to all of the evidence given during these proceedings I have, nonetheless, considered all of the material before me in arriving at my decision in this matter. [42] Mr King, whose evidence has not previously been referred to, informed me that in his position he was responsible for all mental health initiatives operationally and educationally. He was also responsible for the Vulnerable Client Program. Much of his operational experience within QAS had been in built-up areas including lower socio-economic areas. As such, he had been exposed to all types of conduct associated with drug and alcohol affected and mentally ill patients. [43] He said it was important to understand that drug withdrawal is a health issue and it is not appropriate for paramedics to pass judgement on the lifestyle of patients. The work of a paramedic was such that people's lives are dependent upon their capacities and conduct. It is also a fundamental aspect of the care provided by QAS personal to ensure that they respect and protect the most vulnerable members of the community. In that respect, it was a goal of QAS to ensure that every patient was evaluated in a holistic manner; that is socially, clinically and environmentally. [44] Mr King said that in the course of their duties QAS employees interact with persons who are emotionally upset, difficult, angry and/or aggressive. Despite this, from the time QAS receives a call from a member of the public, employees are expected to treat that member of the public with courtesy, compassion and appropriate respect. Training given to Ms Aird included Situational Awareness for Everyday Encounters (SAFE training). [45] SAFE training included or was designed, inter alia, to: • promote professionalism and the use of good practice; • identify the need for continuous threat assessment, risk minimisation and situational awareness; and • enhance safety and a safe work environment for all officers. [46] The training covered skills including but not limited to: • attitude awareness; • temper and ego control; • managing and dealing with conflict, including de-escalating a conflict situation; • threat assessment and situational awareness; and • workplace safety tactics. [47] The Northern Region Operations Manual 2007 provided that patients were to be transported to Hospitals if they required increased care. Mr King said that it appeared, from the CCTV footage (referred to above), that the patient was distressed and that she was being forcibly removed from the Hospital, a place which would have provided her with this definitive care. [48] Mr King also said that the post hand-over policy, in which Ms Aird had been trained, includes a procedure for what occurs following a hand-over of a patient to a Hospital. This policy indicated that a nurse is not in control of a paramedic and is not able to make any direction to a paramedic. [49] Mr Broomfield gave unchallenged evidence to the effect that it was the role of a paramedic to treat the sick and injured and not to cause patients any harm. He said that on the occasion in question, Ms Aird's conduct was not in keeping with the professional standards required by QAS and, in his opinion, would not meet the expectations that the public would have of a professional ambulance service. -- 9 of 12 -- 10 [50] In the course of his cross-examination Mr McNamara said that while he had considered the provisions of both ss. 18A(1)(a) and (b) of the Ambulance Service Act, in that he thought Ms Aird's behaviour went across both sections, he ultimately reached the conclusion that her actions constituted misconduct under s. 18A(1)(b). Later, in his cross-examination, Mr McNamara gave the following response in answer to a question about how he could conclude he had no confidence that a similar event would not occur in the future: "Taking those things into account and the fact that we're talking of an advanced care paramedic who's responsible to treat their patient and to lead a team on some occasions, (her) behaviour in this event was well below that what we would expect of a qualified paramedic. (Or) of any other health care professional for that matter. It's a significant event, and respectfully in my 35 years I've not encountered one as significant as this." (Transcript: 1-42, Lines 37 to 44). [51] Later, the following exchange occurred about the same topic: "Mr McLeod: And going back to that view – you formed the opinion that you had no confidence that a similar event would not occur in the future. Would you agree with me that one way, for example, in order for Officer Aird – sorry, rephrase that. One way in order to satisfy when you were in the position you were in at the relevant time, to try and get some assurance back that this would not happen again, would be by offering some sort of counselling and training to Officer Aird?-- None that honestly, I considered at length. However, given again the seriousness and the – just the reprehensible, if you like, circumstance of this with a vulnerable patient, it was considered very serious. Mmm-hmm. So even though – and I don’t think there's any dispute by Officer Aird that her conduct on the day in question was wrong, and the conduct itself was serious as such as viewed by the QAS, you didn't think it appropriate effectively to offer appropriate counselling, even demote Officer Aird, and effectively to train her up again so this particular incident could not have a repeat some down – someday down the track again?- No. I was not convinced that would be the case, and again taking respect to the seriousness of this impact on the patient, this vulnerable person that didn't put up any fight, there was no issue. In fact it – everything occurred went against everything we are taught to do. We're taught de-escalation even. This has been – this is quite the opposite, it's being quite forthright if you like, and, you know, regrettably the patient – it was very undignified the way she was dragged out of the hospital and dumped in the airlock and then – by two arms, barely wearing any clothing. Very undignified. Very disrespectful. These are huge issues for patient care. We're in – talking of the health care industry here and we take that sort of – we take a very, very serious view of that sort of behaviour. It would be very disrespectful, undignified – it was beyond a minor event." (Transcript: 1-44, Lines 25 to 58 and 1-45, Lines 1 to 2). [52] Finally, in response to a question about whether he was cognisant of the way Patient A acted, and the pressures and inconvenience she might place on QAS, Mr McNamara responded: "Yes. Very much so and it's not an uncommon occurrence. But again it’s the nature of health care and patient care you encounter this type of individual in the medical care of sorts, but it's not an unusual circumstance where there's an individual who's dealt (with) differently by paramedics almost everyday of the week somewhere across the State. And there are systems and processes in place for the officer to – to take this further through a supervisor and make arrangements for that to be managed in conjunction with Queensland Health typically and Queensland Police Service and QAS. It's a protracted process but that's available too…" (Transcript: 1-45, Lines 22 to 32). [53] In re-examination Mr McNamara gave the following evidence: "Mr Merrell: Mr McNamara, did you form the view that Ms Aird, from her conduct on the 18 th of October, had engaged in misconduct within the meaning of the Ambulance Service Act?--Yes. And why did you form that opinion?-- I'd taken all things into aspect. The officers are well trained, well provided for and fully aware of what is required. It breached our Code of Conduct in a very basic way that respect for the person didn't demonstrate respect and dignity for the patient. The method in which the patient was removed from the hospital, as I mentioned, was completely undignified, disrespectful, and potentially put Ms Aird at risk as well with the way she dragged the patient out, and then later to drag the patient further with one arm, it's very distressing to see that footage. That I think was confirmed later for me when I heard the communications centre phone calls of which I didn't have access at the time but heard later, and that simply reinforced my view that there – this was a disgraceful event and should never have occurred." (Transcript: 1-45, Lines 45 to 48 and 1-46, Lines 1 to 6). [54] My consideration of the evidence, especially that of Mr McNamara and of the CCTV footage, leads me to conclude that Ms Aird's behaviour towards Patient A on the day constituted "misconduct" as that term is used in -- 10 of 12 -- 11 s. 18A of the Ambulance Act in that it went well beyond anything which could be captured by the terms "carelessly", "incompetently" or "inefficiently". Her conduct toward Patient A, in her capacity as an Advanced Care Paramedic, was both inappropriate and improper. [55] To borrow the words of Doubney J in Mathieu v Higgins4 at [26] (see paragraph [25] above) Ms Aird's behaviour towards Patient A on the morning of 18 October 2011 constituted serious negligence to the point of indifference, as well as an abuse of the confidence enjoyed by ambulance officers in the eyes of the public at large. She betrayed the trust put in her by QAS, every self-respecting paramedic and the community at large. [56] On my estimation, based upon the photographic evidence and CCTV footage, Ms Aird unceremoniously dragged Patient A, with her dressing gown open revealing her breasts and panties, by her wrists for some 10-12 metres from inside the toilet until she "dumped" her in the airlock between the internal and external doors to the Emergency Department. I use the term "dumped" quite deliberately as the best way to describe Ms Aird's treatment of Patient A when she simply let go of the patient's wrists - thereby allowing her upper body, head and arms to fall to the ground. One would not expect to see a small child treat a ragdoll with such disregard and lack of care, let alone see a qualified paramedic treat a patient that way. [57] Shortly after that, and belying her alleged concerns about Patient A's medical conditions of Hepatitis B and C, Ms Aird can also be seen to be crouching over Patient A before grabbing her right wrist and dragging her, by one arm, a further 2-3 metres to the pavement outside the external doors to the Emergency Department. At this point, Ms Aird's (apparent) callous disregard for Patient A's welfare and status as a patient of QAS is demonstrated more fully when she literally throws the patient's right arm towards the pavement. [58] Reinforcing my view that Ms Aird's behaviour on the morning in question constituted misconduct, three further actions on her part need to be highlighted. Firstly, for no apparent reason - other than to possibly demonstrate to Patient A that she was not welcome in the Emergency Department - Ms Aird can be seen to walk from the foyer of the Emergency Department into the airlock and kick Patient A with her right foot on the patient's right buttock. Secondly, she grabs Patient A's handbag and pulls it from her grasp before dropping it outside the external doors of the Emergency Department. Thirdly, as a final "send off", Ms Aird quite pointedly raises her arm in the direction of the taxi rank as a clear signal to Patient A that that is where she is expected to go. [59] In summary, the interaction between Ms Aird and Patient A reveals four instances of totally inappropriate behaviour which, taken together, constitute misconduct on the part of the former: • dragging the patient by her arms from the toilet to the airlock before dumping her on the ground; • grabbing the patient by the right wrist and dragging her out on to the pavement before throwing her right arm towards the ground; • taking 4-5 paces towards Patient A before kicking her in the right buttock; and • grabbing the handbag off Patient A and dropping it outside the external doors before (unceremoniously) pointing the patient in a direction away from the Emergency Department. [60] All things considered, I totally agree with Mr McNamara's comments in his letter of termination that Ms Aird's behaviour and conduct was "so far removed from normal accepted standards and behaviour that it constitutes a serious deviation from what (one) would expect of a professional employee" and, as such, constituted misconduct on her part. [61] I also agree with Mr McNamara's conclusion that a lesser penalty of termination of employment would not have been an appropriate response in light of Ms Aird's behaviour and conduct on the morning in question. In that sense, to respond to Mr McLeod's submission about the relevant enquiry the Commission was required to make in this particular matter, I believe that the punishment of termination of employment did fit the crime. [62] Ms Aird's behaviour and conduct on the morning in question reflected total disrespect of, and callous disregard to, Patient A's personal welfare and her status as a patient of QAS. Her actions were totally uncalled for and at complete odds with the expectations both QAS and the general public are entitled to have about a qualified paramedic paid from the public purse. [63] After noting that the requisite elements at s. 77(a) to (c) of the Act have been satisfied, and having considered all other matters raised for my consideration (see s. 77(d)), I determine that Ms Aird's dismissal for misconduct on 25 January 2012 was not harsh, unjust or unreasonable. 4 Mathieu v Higgins [2008] QSC 209. -- 11 of 12 -- 12 [64] As such, and for all of the reasons highlighted above, I dismiss her Application for reinstatement, matter number TD/2012/11. [65] I determine and Order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2012 7-9 November 28 November (Submission of Respondent) 17 December (Submission of Appellant) 24 December (Reply Submission of Respondent) Released: 6 December 2013 Appearances: Mr S. McLeod of Counsel instructed by DOR Law for the Appellant. Mr J. Merrell of Counsel instructed by Department of Community Safety for the Respondent. -- 12 of 12 --