Adam v State of Queensland (Queensland Health) [2024] QIRC 177

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO: PROCEEDING: DELIVERED ON: MEMBER: HEARD AT: Adam v State of Queensland (Queensland Health) [2024] QIRC 177 Adam, Michael Appellant v State of Queensland (Queensland Health) Respondent PSA/2024/69 Public sector appeal of a fair treatment decision 24 July 2024 Pratt IC On the papers ORDER: 1. The appeal is dismissed CATCHWORDS: INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – FAIR TREATMENT DECISION – where appellant employed as a clinical nurse in a team that deals with acute mental health issues – where nine allegations made against the appellant – consideration of legal principles of public sector appeals of fair treatment decisions – where respondent substantiated first allegation that the appellant acted in hostile manner towards a consumer – where respondent substantiated second allegation that the appellant was either inappropriate or disrespectful towards co- workers – where respondent partially substantiated third allegation that the appellant failed to make adequate records – where -- 1 of 21 -- 2 respondent substantiated the fourth allegation that the appellant made threatening remarks about a colleague – where respondent substantiated fifth allegation that the appellant inappropriately intimidated a consumer – where respondent substantiated the sixth allegation that the appellant failed on three occasions to give or record care given to high- risk patients – where respondent substantiated the seventh allegation that the appellant made threatening comments towards colleagues while the disciplinary process was afoot – where respondent did not substantiate the eighth allegation – where respondent substantiated the ninth allegation that the appellant alluded to fact that some colleagues were unfit to do their job – where appellant appeals the respondent's decision to substantiate the allegations that it substantiated – whether it was fair and reasonable for the respondent to substantiate the allegations it did – held it was fair and reasonable for the respondent to substantiate the allegations it did because such a finding was open on the facts – appeal dismissed. LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 562A, s 562B, ch 11 Public Sector Act 2022 (Qld) s 129, s 133, s 134 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Goodall v State of Queensland [2018] QSC 319 Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480 -- 2 of 21 -- 3 Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97 Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Wirth v Mackay HHS & Anor [2016] QSC 39 Reasons for Decision [1] Mr Michael Adam ('the Appellant'), is employed by the Respondent as a Clinical Nurse, Mental Health Acute Care Team, Fraser Coast at Hervey Bay Hospital, which forms part of the Wide Bay Hospital and Health Service ('Service'). [2] The Appellant, pursuant to ss 129 and 133 of the Public Sector Act 2022 ('PS Act'), appeals the fair treatment decision handed down by the State of Queensland (Queensland Health) ('the Respondent') dated 20 March 2024. That decision dealt with nine allegations regarding the Appellant's conduct at work. The decision-maker, Mr Ben Ross-Edwards, Acting Chief Executive of the Service, substantiated seven of those allegations partially substantiated one allegation, and did not substantiate one other allegation ('the Decision'). Relevant legal principles [3] Section 134 of the PS Act provides that appeals of this nature are to be heard and decided under Chapter 11 of the Industrial Relations Act 2016 ('IR Act'). Within Chapter 11 of the IR Act, resides s 562B, which relevantly provides that the Commission must decide such appeals by review and not by way of a fresh hearing, and that the Commission's task in such appeals is to decide whether the decision appealed against was fair and reasonable.1 [4] The task of determining whether a decision under appeal was fair and reasonable is carried out by reviewing the decision as well as the decision-making process.2 The phrase 1 Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480, [7], citing Goodall v State of Queensland [2018] QSC 319, 5. 2 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16, [23]. -- 3 of 21 -- 4 'fair and reasonable' is to be construed in accordance with the ordinary meaning of those words. It is not an exercise of assessing the legality or lawfulness of a decision by applying the legal standard of reasonableness.3 [5] An appellant's disappointment with a decision is, on its own, no basis upon which to ground a finding that the decision was not fair and reasonable.4 The Commission's task is to examine the findings and reasoning of the decision maker and assess whether such findings were open to be made. Where such findings were not open to be made, the Commission may well conclude that the decision was not fair and reasonable.5 Some practical injustice must precede a finding that a decision was not fair and reasonable.6 [6] Where a finding is made that the decision was not fair and reasonable, the Commission may set the decision aside and either refer the matter back to the respondent with directions or substitute the decision for another.7 Where the Commission decides that the decision was fair and reasonable, the decision is confirmed.8 Issue to be determined [7] The issue to be determined is whether the Decision was fair and reasonable. To answer that question, each of the impugned findings within the Decision needs to be considered. The Decision The first allegation [8] Mr Ross-Edwards, in the Decision, sets out the details of the particulars of the first allegation ('Allegation 1'), including the relevant portions of the accounts of four different witnesses regarding the exchange between the Appellant and a patient (referred to as a "consumer") on 27 September 2023. The Appellant's manner and tone were described by witnesses as being very hostile. According to the first witness' evidence, the Appellant said to the relevant consumer: Well, what is your work going to do if you kill yourself? As of now I am putting you under the Mental Health Act, which means you have no rights, I am going to have to call your mother to see what she thinks of the situation 3 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16, [20]-[25]. 4 Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162, [82]-[83], [85], ('Hunt') citing Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326, [34]- [36], [57], [61]; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1. 5 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97, [155]. 6 Hunt (n 4) [81], citing Wirth v Mackay HHS & Anor [2016] QSC 39, [40]. 7 IR Act, s 562C(1)(c). 8 IR Act, s 562C(1)(a). -- 4 of 21 -- 5 [9] The first witness reported that, in response to the Appellant's remarks, the consumer said "[p]lease don't call my mum… please don't tell mum as I don't want to worry her, I'm 32 years old, Don't (sic) I get any say in who you can call". [10] Mr Ross-Edwards also set out excerpts of the other witnesses' accounts, noting that their accounts of the event were similar. For example, one witness stated that the Appellant remarked: You have no rights, you lost your rights when you told me you wanted to kill yourself, my duty of care overpowers your rights to choose [11] Other witnesses' accounts corroborated that the way the Appellant interacted with the consumer was intimidating and "a somewhat stand over manner". A consumer, who was at the Service at the time, also gave evidence that the Appellant was "standing over the top of her, intimidating her" in a way that "was like a Police officer (sic) talking to a criminal" and that "was very disrespectful". [12] Mr Ross-Edwards also addressed the Appellant's submissions as to Allegation 1. The Appellant said he was never intimidating or disrespectful, but rather, only truthful and clinical in that he acted fairly and sometimes was required to make decisions that peer support workers are not comfortable with. Mr Ross-Edwards noted that Allegation 1 was not related to the Appellant's decision-making. Rather, the allegation was focused on the Appellant's behaviour and personal conduct with the consumer and others. Mr Ross- Edwards noted that the Appellant failed in his response to provide any level of detail to explain the manner of engagement with the consumer, including tone of voice, volume and body language. Mr Ross-Edwards observed that all four witnesses reported a significantly similar account of the Appellant's engagement with the consumer. Mr Ross- Edwards, while setting out the particulars of the four witnesses' accounts, concluded that this evidenced either or both an inappropriate or threatening and intimidating manner on the part of the Appellant towards the consumer. Mr Ross-Edwards preferred the corroborative accounts of the four witness over the Appellant's standalone account. Consequently, Mr Ross-Edwards concluded that Allegation 1 was substantiated on the balance of probabilities. The second allegation [13] The particulars of the second allegation ('Allegation 2') were set out by the Mr Ross- Edwards in the Decision. They can be summarised as the Appellant behaving in either an inappropriate or disrespectful manner, or both, towards a peer worker, an advanced peer worker, and a clinical staff member while they were all treating a consumer on Wednesday, 27 September 2023. One of the complaints, which were noted in a Riskman incident report of the same date, was that it was extremely challenging for the advanced peer worker to advocate for the consumer because the peer worker felt intimidated by the Appellant. As well, it was alleged that the Appellant said words the effect of "print out -- 5 of 21 -- 6 the rights and involve the IPRA if you want" as the Appellant left the building. The clinical staff member complained that the Appellant was dismissive of her attempts to hand over a consumer she had in her care to the Appellant. More specifically, the clinical staff member alleged that several attempts were made to complete a concise handover and that the Appellant did not receive the handover well and continued to speak over the top of the staff person and eventually walked away. [14] The Appellant, in response to Allegation 2, said he felt that the witness statements did not warrant responding to because they were inconsistent. Mr Ross-Edwards noted the Appellant's submissions about technical expertise and experience but again confirmed that Allegation 2 was about the Appellant's behaviour towards colleagues and not about the Appellant's decision-making. Mr Ross-Edwards also noted that there were inconsistencies between witness statements, but found that there was no evidence that would lead to believing that all three of those staff members would be unreliable or not truthful in their accounts. It was on that basis that Mr Ross-Edwards reached the conclusion that Allegation 2 was substantiated on the balance of probabilities. The third allegation [15] The third allegation ('Allegation 3') was set out in the Decision and also related to an incident on Wednesday, 27 September 2023. In Allegation 3, a peer worker alleged that the Appellant contacted a consumer's next of kin without the consumer's consent and that the Appellant failed to document any of that in the relevant clinical records. This allegation ties in with Allegation 1. Mr Ross-Edwards set out the Appellant's relevant responses to Allegation 3, which included the response that the Appellant conducted the assessment on a consumer and then proceeded with putting a plan into action based on the Appellant's 26 years of experience. However, Mr Ross-Edwards noted that the Appellant's clinical documentation provided no rationale for his actions, nor did it evidence whether the patient had capacity to provide consent for the Appellant to contact the next of kin. Mr Ross-Edwards noted the Appellant's 26 years of experience and determined that that was a relevant consideration. Namely, that with such significant experience, the Appellant should be cognisant of how important it was to make accurate clinical records of interactions with patients and be aware that such documents may be required to prove a medicolegal defence and external formal enquiries to support treatment decisions and any transfer of care requirements. [16] In light of the foregoing, Mr Ross-Edwards found that the Appellant's actions, or lack thereof, was not conducive to forming a therapeutic relationship based on respect. Mr Ross-Edwards also concluded that the Appellant had failed to appropriately document the engagement he had with the consumer, and so Mr Ross-Edwards was unable to determine whether the consumer actually had capacity to consent to the Appellant contacting the relative. However, Mr Ross-Edwards was able to conclude that the part of Allegation 3 pertaining to a failure to make adequate records could be substantiated. -- 6 of 21 -- 7 The fourth allegation [17] The fourth allegation ('Allegation 4') also involved the Appellant's behaviour on Wednesday, 27 September 2023. With regard to Allegation 4, a clinical staff member alleged that the Appellant was disrespectful and threatening in his manner towards an advanced peer support worker. Mr Ross-Edwards set out relevant particulars of Allegation 4, where the clinical staff member alleged that the Appellant approached her in the carpark and said that she did not need to report anything or do anything about "what happened" because the Appellant would be making a formal report anyways. The Appellant then said to the clinical staff member: "I'm going to make sure I take [that advanced peer support worker] down finally". [18] Mr Ross-Edwards noted that the Appellant denied having made the comment but admitted the conversation occurred and that he spoke about his view of peer support workers. Mr Ross-Edwards also found it significant that the report was escalated independently by a clinical nurse. Mr Ross-Edwards had no evidence before him that would support a view that that nurse had been dishonest or untruthful in her account. It was on that basis that Mr Ross-Edwards concluded that Allegation 4 was substantiated on the balance of probabilities. The fifth allegation [19] Mr Ross-Edwards summarised the fifth allegation ('Allegation 5') as involving an incident that was alleged to have occurred on 7 November 2023 where the Appellant had left either an inappropriate or intimidating phone message or both for a consumer and was disrespectful when referring to that consumer to another staff member. The particulars of the allegation were that, while sitting alongside the relevant witness, the Appellant left a message on the consumer's phone to the following effect: "If you fail to respond my call, you would be sending the police to your home". Mr Ross-Edwards noted the witness account included that statement, as well as the Appellant's remark immediately afterwards to the effect of "What's a bet (sic) he calls back straight away". Mr Ross-Edwards noted that the consumer in question was on a high acuity pathway and had been deemed to be a high-risk patient in the Acute Care Team. [20] Mr Ross-Edwards noted the Appellant's explanation for having left the relevant message. The Appellant admitted to having left the message but justified his conduct on the basis that it was of benefit to the consumer to make contact, as opposed to remaining disengaged. Mr Ross-Edwards, however, reasoned that the remark "What's a bet (sic) he calls back straight away" indicated to him that the Appellant was aware of the impact that the words in his message would have upon the consumer. Mr Ross-Edwards did not accept the Appellant's characterisation of the conduct and concluded that the conduct was inappropriate or intimidating or both, and that it was not action that was conducive to forming a therapeutic relationship. Mr Ross-Edwards also found that the actions were a -- 7 of 21 -- 8 significant deviation from acceptable standards of practice. Mr Ross-Edwards concluded that Allegation 5 was substantiated on the balance of probabilities. The sixth allegation [21] The sixth allegation ('Allegation 6') involved events that a clinical nurse consultant alleged occurred during October 2023. That clinical nurse consultant alleged that the Appellant had either failed to provide adequate care or failed to make a record as required of the care given to high-risk patients, or both. Mr Ross-Edwards set out quite detailed particulars of those alleged failures, noting that there were three failures relating to three different consumers. [22] As to the first consumer, a clinical nurse consultant alleged that, on 23 October 2023, the Appellant failed to adequately carry out a risk assessment and triage assessment and did not adhere to the suicide prevention pathway. Mr Ross-Edwards canvassed the pertinent records and concluded that important information was missing. Specifically, Mr Ross Edwards found that: a. the risk screen assessment did not include risk information from the General Practitioner (GP) referral; b. there was no evidence that the Appellant completed the required triage assessment; and c. there was no document to evidence that the Appellant adhered to the suicide prevention pathway process. [23] Mr Ross-Edwards found that the effect of the Appellant's failures was that the Appellant failed to mitigate that consumer's risk of suicide and to keep that consumer safe. In light of the failure to keep records and adequately carry out the necessary assessments, Mr Ross-Edwards substantiated this part of Allegation 6. [24] Regarding the second consumer, a clinical nurse consultant alleged that on 5 October 2023 the Appellant failed to provide any care to a consumer after assessing that consumer's condition as being one of "high acuity" and needing "urgent medical review". The Appellant's raised the point that the consumer had declined to complete a safety plan. However, Mr Ross-Edwards found that this point was moot because the Appellant should have been aware that there were other avenues to assist the consumer to engage in developing a safety plan. Mr Ross-Edwards also found significant the complete absence of evidence to support a finding that the Appellant undertook any of these actions to demonstrate appropriate consumer care. In light of the above, Mr Ross-Edwards also substantiated this part of Allegation 6. -- 8 of 21 -- 9 [25] Turning then to the third consumer, a clinical nurse consultant alleged that the Appellant had triaged a consumer but had not developed a safety plan during the face-to-face contact with the consumer. The Appellant said the consumer did not present a risk of further attempts of suicide that would justify developing a safety plan for the consumer. However, Mr Ross-Edwards found that the risk assessment indicated that a safety plan should have been developed in accordance with the relevant procedure. Mr Ross- Edwards found that the Appellant's failure to develop a safety plan was an exercise of poor clinical judgement on the Appellant's part. Mr Ross-Edwards also found that the Appellant had provided no rationale to support his decision to not develop a safety plan. Nor had the Appellant, as Mr Ross-Edwards further found, attempted to mitigate risk or offer any support to manage the consumer's risk volatility even though the Appellant assessed the consumer's condition as being of "moderate risk". Mr Ross-Edwards in total found that the Appellant failed to complete a risk assessment or provide proper safety planning during face-to-face engagement with the consumer. On that basis, Mr Ross- Edwards also substantiated this part of Allegation 6. [26] Having substantiated each of three allegations contained in Allegation 6, Mr Ross- Edwards concluded that Allegation 6 was substantiated on the balance of probabilities. The seventh allegation [27] The seventh allegation ('Allegation 7') involved allegations that the Appellant made comments that were either inappropriate or threatening or both. Specifically, a staff member alleged that, on 12 January 2024, the Appellant said to them words to the effect of: Unfortunately there are a select group of staff who are not behaving themselves and they've ganged up on the wrong person. I've said it before and I'll say it again, you don't bring a knife to a gun fight. Another team member found that out a few years ago and left under a cloud. And it's not good when it's your boss. [28] The Appellant denied that he said that. However, Mr Ross-Edwards found it persuasive that the staff member had no involvement in other allegations made against the Appellant. On that basis, Mr Ross-Edwards found that the staff member's reports were independent reports and that there was otherwise no evidence to suggest the staff member was being untruthful in her account. Mr Ross-Edwards further found it influential that the alleged threats contained in the comment were made at the same time the Respondent had commenced an open disciplinary process against the Appellant. Mr Ross-Edwards also noted that there was a similar theme between Allegation 7 and the substantiated allegation in Allegation 4. In light of the foregoing, Mr Ross-Edwards found that Allegation 7 was substantiated on the balance of probabilities. -- 9 of 21 -- 10 The eighth allegation [29] The particulars of the eighth allegation ('Allegation 8') largely mirror the particulars of Allegation 7, as both relate to the comment made on 12 January 2024 described above. The difference in the allegations is that in Allegation 7, the staff member alleged that the comment was either inappropriate or threatening or both in nature towards staff. However, in Allegation 8, the staff member alleged that the Appellant failed to comply with a lawful direction to not speak about the matters the subject of the disciplinary process. Mr Ross-Edwards observed that the remarks, while either inappropriate or threatening or both, did not directly refer to matters that were the subject of the disciplinary process. Consequently, Mr Ross-Edwards concluded that Allegation 8 was not substantiated on the balance of probabilities. The ninth allegation [30] The ninth allegation ('Allegation 9') involved allegations that the Appellant made comments that were either inappropriate or disrespectful, or both, towards peer support workers. As to the particulars, two staff members, who I surmise were new to their roles, alleged that, on and around 8 and 10 January 2024, the Appellant made negative comments about peer support workers. The staff members alleged the Appellant said words to the effect that (sic): See those Peer Workers only have an axis 1 diagnosis, unfortunately they've been inflicted upon us don’t all have an axis 1 diagnosis some people are a peer worker because of trauma and substance abuse one did have a diagnosis of schizophrenia but that others don't Peer workers might want to come and do assessment but he refuses to let them come as they are no help One peer worker had an axis 1 diagnosis but that other Peer Worker did not [31] The two staff members reported those comments in an email sent on those days. The Appellant admitted to making comments of this nature but said that he did not mean for the comments to be derogatory and that he did not name names. Mr Ross-Edwards found that the staff member's reports were independent, as the staff were new in their roles and there was no evidence to suggest that they would be untruthful. Mr Ross-Edwards also noted that the comments made were overheard by another witness. For those reasons, Mr Ross-Edwards concluded that Allegation 9 was substantiated on the balance of probabilities. -- 10 of 21 -- 11 Proposed disciplinary action [32] Mr Ross-Edwards proposed disciplinary action in the form of a reprimand and provided the Appellant with seven days to respond to that proposed disciplinary action. Submissions [33] In general, the Appellant challenges the Decision on the basis that Respondent could not have found any of the allegations to be substantiated based on the materials and submissions before it. The parties' submissions respond to each allegation in order. Accordingly, I have set out below the relevant portions of each party's submissions in relation to each allegation. Submissions on Allegation 1 [34] Allegation 1 involved treating a patient with hostility and disrespect. The Appellant submits that the witnesses who made the complaints underpinning Allegation 1 all had "a skewed outlook due to their emotional attachment to the client" and that those witnesses accounts did not consider the Appellant's extensive experience with regard to such patients. The Appellant also relies on Mr Ross-Edwards' finding that the Appellant was senior in terms of length of experience and that the Appellant's actions were contrary to the relevant code of conduct as evidence that Mr Ross-Edwards did not consider the substance of his responses. The Appellant's substantive response to Allegation 1 included assertions that: With due respect the peer workers are not trained professionals and are there due to their lived experience. It is a given that each and every day interaction (sic) will therefore be a potential trigger for the Peer Worker (sic)… My assessment was clinical as it should be. [35] The Appellant further refers to a substantial body of experience he possesses spanning 26 years working in the field, noting that: Their views in relation to my not using the exact language or mannerisms they might use in their untrained capacity should not have bearing on my ability and experience covering 26 years of working in this field and should definitely not be considered when it comes to ensuring appropriate outcomes and pathways for our clients. [36] The Appellant also said in his response that it appears that one of the persons providing a report had been requested to document "as much dirt as she could muster for the purposes of attempts to further portray me in a bad light". [37] The Appellant maintains that he acted fairly and gave the consumer the information, making it clear in the process that the Appellant was authorised to place the consumer into care under the Mental Health Act 2016. Much of the Appellant's response criticises those who made the reports, questioning either their motives for doing so or their clinical -- 11 of 21 -- 12 knowledge and experience in relation to dealing with a client in those circumstances. However, the Appellant does not address allegations about his manner, tone of voice, body language, volume of voice and the specific remarks that were alleged to have been made to the consumer in question. Instead, the Appellant only offers that: I was never intimidating or disrespectful, only truthful and clinical. It is my belief and experience that this approach leads to more beneficial outcomes for our clients in this space. [38] The Respondent submits that Mr Ross-Edwards did have regard to the Appellant's responses. However, the Respondent highlights the fact that the Appellant focused on justifying his actions in a strictly clinical sense, which was not the core issue at the heart of the allegation. Rather, as the Respondent submits, the allegation concerned the Appellant's manner and conduct during the assessment of that consumer separate from the clinical decision. The Respondent further highlights that the Appellant, in both his submissions and responses during the disciplinary process, failed to provide any evidence or specific rebuttals in response to the detailed accounts provided by numerous witnesses about the Appellant's tone, physical demeanour and choice of words. [39] The Respondent rejects that the witnesses had a "skewed outlook" because of their lived experience. The Respondent submits that the lived experience possessed by peer workers is a relevant part of what makes them clinically effective and that this lived experience does not mean that peer workers will necessarily form emotional attachment to their consumers. The Respondent further submits there was no evidence of such an emotional attachment in the present matter. As well, the Respondent noted that all of the witnesses accounts reviewed by the Mr Ross-Edwards were consistent and corroborated the allegation. [40] The Respondent submits that each of the Appellant's arguments were given careful consideration by Mr Ross-Edwards. It submits that the Decision includes a comprehensive analysis of all of the available information including the Appellant's responses to each of the witness accounts, relevant policies, the specific context of the incident and the witness accounts of it. The Respondent argues that the Decision was not based on a superficial review, but rather, this thorough and balanced evaluation process. Submissions on Allegation 2 [41] Allegation 2 was about the challenges the advanced peer worker, peer worker, and clinical staff member encountered with Appellant while trying to advocate on behalf of the consumer. The Appellant argues that there was a lack of particularity in relation to the witness accounts that rendered those accounts implausible. The Appellant argues that the peer worker who stated that she was ignored did not provide particulars as to what precisely it was she said that was ignored and how that witness inferred she was being ignored. The Appellant also notes that the advanced peer worker who stated that she felt threatened by the Appellant did not outline any statements or particulars as to how she -- 12 of 21 -- 13 was threatened. And regarding the clinical staff member who alleged that the handover was "not well received", the Appellant argued that there were inadequate particulars as to how or what was said. [42] The Respondent submits that there was sufficient detail that was the subject of some discussion in the Decision as to whether the Appellant had ignored the relevant peer worker. The Respondent also submits that there was sufficient detail within that complaint for the Respondent to admit or deny the allegation. The Respondent refers the report by the advanced peer worker that she felt "physically rattled" as indicating a visceral reaction to the Appellant's behaviour. [43] The Respondent further submits that simply because a witness did not provide an exhaustive list of specific actions or words, does not mean the allegation was so devoid of context that the Appellant was unable to provide a response to it. The Respondent also notes that Allegation 2 flowed on from Allegation 1. The Respondent further argues that there was sufficient particularity to the clinical staff member's account of being unable to carry out the handover, as they gave very specific observations. These observations were that the Appellant spoke over them, walked away during attempts to provide a handover, and was dismissive. The Respondent points out that whilst these allegations do not quote exact words alleged to have been said, they do provide a clear picture of the interaction and the Appellant's alleged behaviour. [44] The Respondent further submits that any inconsistencies between the accounts of witnesses were minor and that such inconsistencies are common when different witnesses recall the same event. In any case, the Respondent submits that the inconsistencies do not necessarily negate the overall narrative. The Respondent also submits that the core elements of the witness statements are "…remarkably consistent: they all describe behaviour from the Appellant that was perceived as dismissive, intimidating, or unprofessional." Submissions on Allegation 3 [45] Allegation 3 concerns the allegations of inappropriate remarks made by the Appellant around calling the relevant consumer's mother. The Appellant's submission in relation to Allegation 3 is brief. The Appellant submits that the allegation should not been substantiated because the Appellant has extensive experience in the area and was merely performing his role. Additionally, the Appellant submits that there was only one witness in relation to Allegation 3 and, as such, that allegation should not have been substantiated. [46] In response to those submissions, the Respondent notes the Appellant's substantial experience. However, the Respondent highlights the same point made by Mr Ross- Edwards that such experience does not exempt the Appellant from following proper documentation procedures and adhering to best practice. The Respondent also underscores in its submissions the critical importance of proper documentation in clinical -- 13 of 21 -- 14 settings and that it would expect as much from someone with the 26 years of experience. Again, the Respondent notes in its submissions that this allegation was not about the Appellant's clinical decision-making, but rather about the Appellant's failure to document his actions and rationale adequately. [47] In response to the Appellant's submission that only one witness account was provided and therefore Allegation 3 should not be substantiated, the Respondent submits that they only substantiated the part of Allegation 3 that could be evidenced. As the Respondent notes, the fundamental issue within this allegation was the failure to correctly document any potential contact with the relative. The distinct absence of any such recording of this information in the clinical record was the concern. And, as the Respondent observes, Mr Ross-Edwards found this allegation was only partially substantiated as a result of insufficient evidence. The Respondent submits that the only part of the allegation that was substantiated was the Appellant's failure to make the appropriate notes in the Respondent's clinical records. Submissions on Allegation 4 [48] Allegation 4 concerned the Appellant's remark made to a clinical staff member along the lines of "I am going to make sure I take [that advanced peer support worker] down finally". In his response to the allegation, the Appellant denied making the alleged remark but did admit to voicing his concerns that peer workers continued to undermine the clinicians and make achieving the best outcomes for consumers difficult at times. [49] In his submissions, the Appellant argues that the allegation should not have been substantiated on the basis that he gave a comprehensive response to the allegation and the witness evidence lacked integrity because there was only one witness. The Appellant also submits that the Mr Ross-Edwards did not take into consideration the Appellant's submissions regarding that witness statement. [50] The Respondent submits that whilst they did reject the Appellant's response to the allegation, simply rejecting an allegation does not automatically invalidate it. The Respondent notes, as is set out in the Decision, that the Appellant admitted that a conversation did take place at the alleged time and location, thus corroborating key elements of the allegation. The Appellant also acknowledged that he discussed his concerns about peer workers with that clinical staff member. The Respondent submits that those admissions align with the general context of the alleged incident. The Respondent submits that the Mr Ross-Edwards simply preferred the witness' account, finding it more credible than the Appellant's denial based on an assessment of all of the available evidence. [51] The Respondent accepts that there is only a single witness but points out that Mr Ross- Edwards was entitled to rely on that witness in the circumstances. The Respondent further submits that, contrary to the Appellant's suggestions, there was no evidence to suggest -- 14 of 21 -- 15 that the clinical staff member was not credible or was motivated by any desire to fabricate or exaggerate their account. The Respondent's submission notes that Mr Ross-Edwards, when evaluating the veracity of Allegation 4, had express regard to the absence of any evidence undermining the credibility of the witness and the Appellant's partial corroboration of the events alleged. Submissions on Allegation 5 [52] Allegation 5 was in relation to the Appellant leaving a voicemail message on a consumer's phone to the effect of "If you fail to respond my call, you would be sending the police to your home" and subsequently making a remark to a colleague along the lines of "What's a bet (sic) he calls me back straight away". [53] In his response to Allegation 5, the Appellant argued that the call was merely to advise the consumer that failure to make contact in accordance with the consumer's mental health plan would result in the Appellant calling in a welfare check on the consumer. The Appellant argued that he was not concerned at any stage that the consumer posed a risk of suicide to themselves and that it was concerning that the Respondent might suggest or believe that it had insight into what the Appellant was thinking at the time. The Appellant argued that he determined that it would be beneficial for the client to make contact as opposed to remaining disengaged. The Appellant argued that the call to the consumer was not in the least bit threatening, and that the allegation mischaracterises the context in which it was made. [54] In his submissions, the Appellant also submits that the allegation should not have been substantiated on the basis that the Appellant provided a comprehensive response to the allegation and that Mr Ross-Edwards failed to "provide any substantive reasoning" as to why the Appellant's response was not preferred. [55] The Respondent submits that while the Appellant did provide a response to the allegation, it did not amount to a denial. Rather, the Respondent submits that the Appellant's response only sought to justify the nature of the message that the Appellant left on the consumer's phone as well as the subsequent remark. The Respondent submits that it is mischaracterising the conduct to describe it as merely advisory. The Respondent submits that a consumer failing to engage with the Service does not justify the use of what it considers to be intimidating tactics, especially for a high risk patient on the high acuity pathway for care and support. The Respondent also submits that the Appellant's response failed to address at all the alleged remark made after having left the message. [56] The Respondent further submits that Mr Ross-Edwards set out very clearly why he did not accept the Appellant's response. He did not accept the Appellant's response because the Appellant did not deny that the comments were made and failed to address the post- phone call remark at all. Mr Ross-Edwards reasoned that the Appellant must have known -- 15 of 21 -- 16 the message would have had an impact on the consumer and that the consumer was considered vulnerable due to being on the high acuity pathway. Submissions on Allegation 6 [57] Allegation 6 concerned three separate examples of a failure to provide adequate care to high-risk patients and to document that care. In his response to Allegation 6, the Appellant argued that in the first example, he had completed his assessment with no cause for alarm coming to light and therefore there was no need for a referral on the Monday following. [58] As to the second alleged example, the Appellant argued that the relevant witness was someone who the Appellant considered to be of a condescending demeanour in relation to these allegations and these clients. The Appellant argued that the relevant witness was only a newly promoted member of staff and stated that he found the allegations insulting. [59] As to the third alleged example, the Appellant argued, in his response to the allegations, that during triage of the patient it became apparent that the patient did not present a risk of further attempts of suicide. [60] In his submissions, the Appellant omitted to deal with Allegation 6. In its submissions, the Respondent simply notes that the Appellant does not address Allegation 6 in his submissions. No attempt was made by the Appellant to contact the Commission to seek to address this omission. I have assumed that the Appellant does challenge the findings concerning Allegation 6 and does so on the same basis he did in his written reply to the show cause that I have briefly summarised above. Submissions on Allegation 7 [61] Allegation 7 concerned the alleged remark by the Appellant to another member of staff concerning other members of staff having "ganged up on the wrong person". In his response, the Appellant simply wrote in relation to Allegation 7 and Allegation 8 that they are, in substance, the same allegation and "I never at any stage made the comments as suggested". [62] In his submissions, the Appellant submits that Allegation 7 should not have been substantiated because the Appellant denies the allegation. Additionally, the Appellant submits that the remark should not be defined as a 'threat' on the basis that there was no direct or substantive statement from the Appellant to another person that would meet the criteria of a threat. [63] The Respondent submits that a denial is not enough to dismiss the allegation. It notes Mr Ross-Edwards finding that the witness account was credible and independent. The Respondent submits that the witness account set out details that the Appellant did not -- 16 of 21 -- 17 specifically rebut. The reported comments, the Respondent submits, are also a plausible fit in the context of the Appellant's current situation. The Respondent notes that the Appellant offered no alternative explanation for that conversation. [64] As to whether the comments amount to a 'threat', the Respondent submits that the allegation describes the comments as 'inappropriate and/or threatening in nature' not as a direct 'threat'. The Respondent emphasised that there is a distinction between speaking in a threatening way and making a threat per se. The Respondent submits that Mr Ross- Edwards' reasoning was sound because, based on the evidence and the Appellant's response, it was open to conclude that the Appellant made those comments and that the comments were intimidating or threatening in nature. Submissions on Allegation 8 [65] Both of the parties agree that allegation 8 was not substantiated. Accordingly, there are no submissions that are relevant relating to allegation 8. Submissions on allegation 9 [66] Allegation 9 included remarks made about various peer workers having "an Axis 1 diagnosis", a "diagnosis of schizophrenia" and being "no help". [67] The Appellant in reply to the show cause setting out Allegation 9 contended that it was "clearly an intentional effort and poor at that to fabricate a story to cast further doubt on my professionalism". The Appellant further contended that he was simply making general comments to a new employee, explaining the make-up of the team so that that employee was versed in how they operated. The Appellant denied making any derogatory remarks or disclosing any identifying attributes of individuals. The Appellant argued , as I surmise, that the witness statements were inconsistent with the dates provided. The Appellant also submitted that placing reliance on a person's recollection of a conversation that they only heard part of as they passed briefly by did not even come close to being a sound basis upon which to conclude what was said. [68] In his submissions, the Appellant relies on the response given to the allegations in the first instance that I have briefly summarised above. The Appellant denies making those remarks described above, and so the submission is that Allegation 9 should not have been substantiated by the Mr Ross-Edwards. [69] The Respondent accepts that there was an error as to recording the relevant date but submits that that was an administrative error only and did not invalidate the witness accounts of the alleged incident. The Respondent notes that the Appellant was still able to recall the conversation and respond to the allegation. The Respondent also submits that the core content of the witness statement relied on by Mr Ross-Edwards remains -- 17 of 21 -- 18 consistent and that any administrative error in relation to the recording of the date did not negate the evidence. [70] The Respondent also submits that it was relevant in Mr Ross-Edward's reasoning that two independent witnesses provided similar accounts, with one of them being new to the area and having no apparent reason to be untruthful in her account. The Respondent's submission is that Mr Ross-Edwards simply preferred the witness' accounts to the account given by the Appellant because of the independence of both of the witnesses and consistency between their two accounts. The Respondent submits that Mr Ross-Edwards preference for the account of the two witnesses was reasonably open to him. Consideration [71] As a general observation, it is immediately apparent to me that the Decision was well reasoned and each of its separate conclusions were evidence-based. [72] Allegation 1 was set out in the Decision and Mr Ross-Edwards noted that careful consideration had been taken of all of the material put before him. The reasons are set out clearly and it is obvious that Mr Ross-Edwards has favoured the witness accounts of the alleged incident over the denial by the Appellant. In coming to that view, Mr Ross- Edwards weighed heavily the fact that each of the four witness accounts were from different workers and an independent consumer who all corroborated the Allegation 1. On my assessment, it was entirely open for the Mr Ross-Edwards to conclude, based on preferring that evidence over the account provided by the Appellant, that the allegation was substantiated. Accordingly, I am of the view that this part of the Decision was fair and reasonable. [73] After setting out Allegation 2 in detail, Mr Ross-Edwards observed that the Appellant's submissions about the technical aspects of the Appellant's professional and clinical decision-making were not relevant because the allegation focused on the manner of the Appellant's engagement with the peer support workers and a clinical nurse. Mr Ross- Edwards also observed that the evidence of the clinical nurse supported the evidence of the support workers and that the clinical nurse also felt strongly enough at the time to ask that the Appellant not return to the area for the remainder of the shift. Mr Ross-Edwards acknowledged the Appellant's response, including his arguments that there were inconsistencies in the witness statements and that the statements did not warrant responding to. However, Mr Ross-Edwards concluded that all three witness accounts were credible as there was no evidence before the Mr Ross-Edwards that would lead to believing that all three staff members would be unreliable or untruthful in their accounts. It was upon that basis that the Mr Ross-Edwards concluded that Allegation 2 was substantiated on the balance of probabilities. [74] I see no fault in Mr Ross-Edwards analysis of the evidence and reasoning concerning Allegation 2. He simply preferred the corroborating witness evidence of three -- 18 of 21 -- 19 independent witnesses who he, rightfully so in my opinion, considered to be reliable. That was a conclusion that was entirely open to him to make. I therefore find that this part of the Decision was fair and reasonable. [75] Turning to Allegation 3, Mr Ross-Edwards noted the Appellant's submissions regarding his purportedly superior exercise of judgement based on his 26 years of experience. However, Mr Ross-Edwards observed that the Appellant's response failed to provide any explanation or rationale for contacting the consumer's relative without consent. Mr Ross- Edwards also observed that the Appellant's documentation provided no rationale or evidence as to whether the patient had capacity to provide consent for the Appellant to contact the relative. Mr Ross-Edwards observed that the records which should have documented the engagement between the Appellant and the consumer were inadequate and lacking in necessary detail. Mr Ross-Edwards found that it was therefore not possible to determine whether the consumer had capacity to consent to her relative being contacted. On that basis, Mr Ross-Edwards found the allegation only partly substantiated - the part relating to the inadequate capturing of information in the clinical records. That conclusion was entirely open to Mr Ross-Edwards to draw on my assessment. I find that this part of the Decision was fair and reasonable. [76] The findings with respect to Allegation 4 were equally well-reasoned on my assessment. The Mr Ross-Edwards clearly considered the Appellant's submissions but placed more weight on the independent escalation by the clinical nurse witness, having found nothing to suggest her account was not credible. On that basis, Mr Ross-Edwards preferred the witness evidence to the Appellant's denials. It was also significant in Mr Ross-Edwards reasoning that the Appellant admitted that a conversation occurred and that during that conversation the Appellant did express his views about the peer support workers. In my opinion, that, in conjunction with the credible witness account, rightly swung the balance in favour of Mr Ross-Edwards preferring the witness' version to the Appellant's. I see no fault in that reasoning. Accordingly, I find that this conclusion was open to be drawn by Mr Ross-Edwards and that this part of the Decision is fair and reasonable. [77] Allegation 5 was also set out in detail within the Decision. Mr Ross-Edwards concluded that the Appellant must have been aware of the impact that his message would have had on the consumer. That was a conclusion drawn from the connotations underlying the "What's a bet (sic) he calls me back straight away" comment. The conclusion was open on the evidence. Accordingly, I find that this part of the Decision was fair and reasonable. [78] Mr Ross-Edwards dealt with each of the three examples set out within Allegation 6 in detail. The analysis of that allegation alone is two pages long. Within it, Mr Ross- Edwards clearly considers the Appellant's submissions in reply to the show cause concerning each separate example. Mr Ross-Edwards noted the Appellant's responsibility to not just provide adequate care but to document doing so as well. Relying on the absence of such documenting in the relevant records and the Appellant's responses, Mr Ross-Edwards concluded that the appropriate advice and care was not provided. -- 19 of 21 -- 20 [79] Mr Ross-Edwards considered the Appellant's submission that, in one case, the consumer did not present as a risk of further attempts of suicide, thus justifying the Appellant's decision to not develop a safety plan. However, Mr Ross-Edwards observed that a safety plan should have been developed in accordance with the relevant procedure. Mr Ross- Edwards observed also that the Appellant had assessed the consumer as a moderate risk but failed to attempt to mitigate the risk or offer any support to manage risk volatility as required. Mr Ross-Edwards also noted that the Appellant provided no rationale in support of his assertions. In light of the foregoing, Mr Ross-Edwards concluded that the Appellant exercised poor clinical judgement in this instance. [80] The key findings in Allegation 6 were that the appropriate care had not been provided and that the Appellant's records of the interactions were inadequate. Those findings were based on the Appellant's assertions and a review of the records. In large part, the Appellant's assertions admitted the facts of the allegation but sought to justify the conduct. The inadequacy of records in some instances comprised no record at all since the relevant service was not offered or carried out. The absence of a record was therefore clear proof of the allegation as far as it went towards the failure to keep adequate records. Mr Ross-Edwards also found that the Appellant's submissions that the service or support in question was not required in various cases was at odds with the policy and procedure operating at the time. It was also an admission by the Appellant that no service or support had been offered. I find no fault in Mr Ross-Edwards reasoning here and so I am of the view that his conclusions were open to be drawn. I therefore find that this part of the Decision was fair and reasonable. [81] Mr Ross-Edwards also gave careful consideration to the Appellant's submissions concerning Allegation 7. Those submissions included a denial of having made the comment. Against that, Mr Ross-Edwards reasoned that the staff member who made the allegations had no relationship to the Appellant and so was an independent witness. On my assessment, it was open to Mr Ross-Edwards to conclude that the witness was reliable and had given a truthful account. Mr Ross-Edwards explained that there was no evidence before him to support a view that the staff member was being untruthful in her account. It is upon that basis that the Mr Ross-Edwards concluded that it was plausible that the Appellant did in fact make a comment along the lines of that which was alleged. Mr Ross-Edwards also noted that the comment, which had tangential reference to the disciplinary process, was made at the time the disciplinary process was on foot. That also weighed in favour of finding that Allegation 7 was substantiated. On review, I find that that reasoning is sound. It was open to Mr Ross-Edwards to conclude that Allegation 7 was substantiated. Accordingly, I find this part of the Decision was fair and reasonable. [82] Allegation 8 was found to be not substantiated by the Mr Ross-Edwards. Accordingly, Allegation 8 does not feature in this matter. -- 20 of 21 -- 21 [83] Allegation 9 was also set out in detail in the Decision. Mr Ross-Edwards noted that the Appellant, in his response to the show cause notice, admitted to making general comments about the make-up of the Acute Care Team. It was also significant to Mr Ross- Edwards that one of the witnesses was a new staff member in the role of clinical nurse consultant and was also new to the area. It was upon that basis that Mr Ross-Edwards reasoned that that witness was credible. Furthermore, Mr Ross-Edwards found no reason why the witness might be untruthful in her account of the conversation that she had with the Appellant. Based on that account and that of another witness passing by who overheard part of the conversation, Mr Ross-Edwards concluded that there was sufficient corroboration between those two accounts and so preferred the witness accounts over the Appellant's account. It was on that basis that Mr Ross-Edwards concluded that Allegation 9 was substantiated on the balance of probabilities. That conclusion was entirely open to Mr Ross-Edwards to reach in my opinion. I conclude that this part of the Decision was fair and reasonable. Conclusion [84] I accept the Respondent's submissions. I cannot accept the Appellant's submissions. On my assessment of the Decision, each conclusion drawn by the Mr Ross-Edwards was open to be drawn based on the material available. I note that Mr Ross-Edwards is only proposing to reprimand the Appellant. Given the gravity of some of the substantiated allegations, the proposed reprimand would be very much on the lenient side of the range of disciplinary action that the Appellant would be exposed to. The Appellant would be fortunate to escape with only a reprimand in my view. [85] In any case, I find that the Decision was fair and reasonable in all respects. The appeal is dismissed, and the Decision is confirmed. -- 21 of 21 --