Danaher v State of Queensland (Queensland Health) [2022] QIRC 407

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: Danaher v State of Queensland (Queensland Health) [2022] QIRC 407 Danaher, Mitchell (Appellant) v Queensland Ambulance Service (Respondent) CASE NO: PSA/2022/733 PROCEEDING: Public Service Appeal – Appeal against a disciplinary decision DELIVERED ON: 25 October 2022 HEARD AT: MEMBER: On the papers Pidgeon IC ORDERS: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a disciplinary decision – whether the decision was fair and reasonable – whether disciplinary action was appropriate and proportionate – where disciplinary finding decision fair and reasonable – where disciplinary finding decision confirmed LEGISLATION AND OTHER INSTRUMENTS: Ambulance Service Act 1991 s 18A, 18B Industrial Relations Act 2016 s 562B, 562C Public Service Act 2008 s 194 Queensland Ambulance Service Discipline Human Resource Policy cl 3 CASES: Aldrich v Ross (2000) 2 Qd R 235 -- 1 of 22 -- 2 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gilmour v Waddell & Ors [2019] QSC 170 Nesbit v Metro North Hospital and Health Service [2021] ICQ 005 Police Service Board v Morris (1985) CLR 397 Reasons for Decision Background [1] Mr Mitchell Danaher (the Appellant) is employed by the Queensland Ambulance Service (QAS) (the Respondent) as an Advanced Care Paramedic at Spring Hill Ambulance Station, North Brisbane District, Metro North Region. [2] On the evening of 27 May 2021, Mr Danaher was on night shift and partnered with an Officer and a Student Officer. At approximately 11.33pm, the ambulance was dispatched to attend upon a patient who was reportedly intoxicated and unconscious. Mr Danaher was the patient care officer, which meant that he took primary responsibility for the care of the patient. In the ambulance on the way to the Royal Brisbane and Women's Hospital, the patient began vomiting and was wrapped in towels for the protection of her clothing and the equipment in the ambulance. During the transportation, the patient began to regain consciousness. [3] There are different versions of events regarding what happened next in terms of the patient's behaviour. However, Mr Danaher admits that after the patient began to regain consciousness, he made contact with the patient. Specifically, Mr Danaher says that he 'flicked' the patient on the side of the head. [4] On 14 January 2022, Mr David Hartley, Acting Assistant Commissioner, Metro North Region, Queensland Ambulance Service, wrote to the Appellant advising that a show cause process had begun in relation to the following allegation: Allegation 1 That on 27 May 2021, you inappropriately and without reasonable excuse, hit a female patient on the face with your hand whilst transporting the patient to hospital in an ambulance. [5] The Appellant was given fourteen (14) days from receipt of this correspondence to show cause why disciplinary findings should not be made against him. On 11 August 2022, Mr Stephen Zsombok, Deputy Commissioner, Corporate and Statewide Services, Queensland Ambulance Service, wrote to Mr Danaher to inform him of: the decision in -- 2 of 22 -- 3 relation to the allegation; grounds for discipline; and to invite him to show cause regarding proposed disciplinary action. [6] Pages 2 – 11 of the decision address Mr Danaher's submissions and the reasons why Mr Zsombok determined that the allegation was substantiated. Following this detailed information, Mr Zsombok says: For the reasons set out above, I am satisfied, on the balance of probabilities, that you inappropriately and without reasonable excuse, hit a female patient in the face with your hand whilst transporting the patient to hospital in an ambulance. I consider that the allegation is substantiated. [7] Mr Zsombok went on to say: Having considered the information available to me in respect of the Allegation, I consider there are grounds for you to be disciplined pursuant to section 18A(1)(b) of the Ambulance Service Act 1991 (the Act) in that you are: (a) Guilty of misconduct; (5) Misconduct means – (a) Inappropriate or improper conduct in an official capacity. … [8] Mr Zsombok goes on to state that he is considering imposing the disciplinary action of termination of employment and invites Mr Danaher to respond. As there is no decision regarding disciplinary action, my decision on this appeal will relate only to the substantiation of the allegation and to the decision regarding the grounds for discipline. Is the Appellant entitled to appeal? [9] Section 194 of the Public Service Act 2008 (the PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(b) provides that an appeal may be made against: (b) a decision under a disciplinary law to discipline — (i) a person (other than by termination of employment), including the action taken in discipling the person; ... [10] The appeal notice was filed with the Industrial Registry on 1 September 2022 within 21 days of the decision being received on 11 August 2022. I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required time. -- 3 of 22 -- 4 Appeal principles [11] Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'. [12] Relevantly to this matter, s 562B(4) of the IR Act states that: For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission — (a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but (b) may allow other evidence to be taken into account if the commission considers it appropriate. [13] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal. [14] A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. [15] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may: (a) confirm the decision appealed against; or … (c) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. [16] Section 18A of the Ambulance Service Act 1991 (Qld) stipulates the following grounds for discipline: 18A 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 misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the officer as a service officer by a responsible person; or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the officer’s duties; or -- 4 of 22 -- 5 (f) contravened, without reasonable excuse, a requirement of the chief executive under section 13A(1) in relation to the officer’s appointment by, in response to the requirement— (i) failing to disclose a serious disciplinary action; or (ii) giving false or misleading information; or (g) contravened, without reasonable excuse, a provision of this Act or an obligation imposed on the person under— (i) a code of practice; or (ii) a code of conduct— (A) approved under the Public Sector Ethics Act 1994; or (B) prescribed under a directive of the commission chief executive under the Public Service Act 2008; or (iii) an industrial instrument. (2) A disciplinary ground arises when the act or omission constituting the ground is done or made. (3) Also, the chief executive may— (a) discipline a service officer under subdivision 2 if a ground mentioned in subsection (1) exists; or (b) discipline a former service officer under subdivision 3 or 4 on the same grounds mentioned in subsection (1). (4) If the chief executive is contemplating taking disciplinary action against a service officer in relation to performance or conduct that the chief executive considers may have been influenced by the officer’s health, or on the ground of absence from duty, the chief executive may— (a) appoint a medical practitioner to examine the officer and to give the chief executive a written report about the officer’s mental or physical condition, or both; and (b) direct the officer to submit to the medical examination. (5) In this section— Misconduct means — (a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the ambulance service. Example of misconduct — victimising another service officer in the course of the other officer’s employment in the ambulance service responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise. [17] Further, section 18B of the Ambulance Service Act outlines the disciplinary action that may be taken against a service officer generally as follows: -- 5 of 22 -- 6 18B Disciplinary Action that may be taken against a service officer generally (1) In disciplining a service officer, the chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances. Examples of disciplinary action— • termination of employment • reduction of classification level and a consequential change of duties • transfer or redeployment to other ambulance service employment • forfeiture or deferment of a remuneration increment or increase • reduction of remuneration level • imposition of a monetary penalty • if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments • a reprimand (2) If the disciplinary action is taken following an agreement under section 18F(1) between the previous chief executive and the employing chief executive mentioned in the section, the chief executives must agree on the disciplinary action. (3) A monetary penalty can not be more than the total of 2 of the officer’s periodic remuneration payments. (4) Also, an amount directed to be deducted from any particular periodic remuneration payment of the officer— (a) must not be more than half of the amount payable to or for the officer in relation to the payment; and (b) must not reduce the amount of salary payable to the officer in relation to the period to less than— (i) if the officer has a dependant—the guaranteed minimum wage for each week of the period; or (ii) otherwise—two-thirds of the guaranteed minimum wage for each week of the period. (5) An order under subsection (1) is binding on anyone affected by it. Note — See the following provisions in relation to appeals against a decision of the chief executive to take disciplinary action against a person— (a) the Public Service Act 2008, sections 23 and 194; (b) the Public Service Regulation 2008, sections 5 and 7 and schedule 1, item 4. [18] The Queensland Ambulance Service Discipline Human Resource Policy ('the QAS Discipline Policy') provides the disciplinary provisions applicable to employees of the QAS. -- 6 of 22 -- 7 [19] In particular, clause 3.1 of the QAS Discipline Policy provides the following grounds for discipline: … 3.1.2. Employees engaged under the authority of the Ambulance Service Act 1991, may be subject to disciplinary and penalties in accordance with the applicable provisions of that Act. 3.1.3. Decisions to implement disciplinary penalty must be decided on the balance of probabilities. [20] Clause 3.2 of the QAS Discipline Policy sets out the following principles of discipline as follows: 3.2.1. All disciplinary action (including post separation discipline) must be: (a) in accordance with the appropriate legislation and standards; (b) supported by objective evidence which has taken all of the relevant matters into account; (c) in accordance with the principles of natural justice; and (d) provided to the employee in writing. The decision letter [21] Mr Danaher's submissions in response to Show Cause Notice One are set out by Mr Zsombok in the decision letter. I will not reproduce those here, but in summary, the submissions state that: • Contact was made with the patient's head by way of a flick, following the patient throwing a 'sats probe' at Mr Danaher. • The witness to the interaction did not have a proper view of the interaction and, as a student, may not have had the experience to understand the situation. • Earlier in that shift, Mr Danaher experienced 'one of the most physically and emotionally traumatic experiences in his career with QAS' and that on reflection, he should have withdrawn from duty after the first traumatic incident but he tried to continue working. • Mr Danaher is concerned about the investigation process and says that the investigator excluded evidence provided by him during the investigation. • The investigator did not take into consideration that one of the witnesses was driving and could not reliably recall matters, one of the witnesses could not clearly hear or see the patient and that no witness has provided a clear account of what he or the patient may have said. -- 7 of 22 -- 8 • He was not mimicking the patient but using a style of communication to maintain the patient's verbal communication and minimise the risk of escalation to physical behaviour. [13] In the decision letter, Mr Zsombok states that while he accepts that the patient was intoxicated with a substance and displayed some Acute Behaviour Disturbance (ABD) in line with the categories set out in Clinical Practice Guideline – Acute Behaviour Disturbance (CPG ABD), Mr Zsombok considers that Mr Danaher has not provided evidence of his knowledge or application of the strategies set out in the CPG ABD, including using self-control and non-aggression. Mr Zsombok also says that Mr Danaher has not provided evidence of his knowledge or application of the Clinical Practice Guideline – Other/Clinician Safety (CPG Other/Clinician Safety) which requires that officers conduct risk assessments and use situational awareness. Mr Zsombok also says that Mr Danaher has failed to demonstrate any knowledge or application of the Clinical Practice Manual – Use of Force. [14] Mr Zsombok goes on to say that given Mr Danaher's admissions, it is not in dispute that he made contact with the patient's head with the back of his right hand. However, Mr Danaher disputes that he 'hit' the patient as alleged and denies hitting the patient on the face but claims to have made contact with the side of her head. [15] Mr Zsombok says that he has given careful consideration to the evidence of the Student Officer who was holding the patient's head at the time of the incident and that the Student Officer's evidence is that the contact made with the patient was a 'hit'. Mr Zsombok also says that he has considered Mr Danaher's submission regarding the position of the Student Officer and what she would have been able to see. With reference to a photograph showing the view the Student Officer would likely have had in the situation, Mr Zsombok says that he is not satisfied that the position of the Student Officer in the ambulance means that he should give her evidence any less weight. Further to this, Mr Zsombok finds that Mr Danaher's admission that he may have made incidental contact with the Student Officer's hand at the time of the contact with the patient means that Mr Danaher's evidence and the evidence of the Student Officer are 'largely corroborative'. [16] Mr Zsombok expresses significant concern that Mr Danaher appears to be attempting to minimise the seriousness of his conduct by distinguishing between contact with the face and the head. Mr Zsombok says that either type of contact, without reasonable excuse, is serious misconduct. [17] Mr Zsombok says that by the account of the Student Officer and the other Officer present, the Student Officer was reluctant to report the incident and as a result, he considers that there is unlikely to be any exaggeration or deceit. Mr Zsombok also notes Mr Danaher's -- 8 of 22 -- 9 acceptance that the patient 'recoiled' and says that this is evidence of more force being used than that which Mr Danaher stated was used. [18] Mr Zsombok points to an exchange between Mr Danaher and the patient where the patient said words to the effect of 'Don't hit me' and Mr Danaher, 'Don't throw stuff at me.' This was the recollection of the Student Officer and Mr Zsombok says that in Mr Danaher's response, he agreed that this was the wording used. [19] In determining that the alleged 'hit' occurred, Mr Zsombok says: For the above reasons, I am not satisfied that there is any reason I should not accept the evidence of Student Officer [redacted] as a truthful and accurate account of events. Notably, I am unable to identify a motivation for Student Officer [redacted] to give evidence contrary to your interests. However, there is an obvious incentive for you to try and downplay and minimise the force of the contact during the incident. Taking all of the evidence available to me into consideration, on balance, I accept the evidence of Student Officer [redacted] over your evidence in relation to the force of the contact with the patient. I am not satisfied that you merely 'flicked' the patient on the side of the 'head'. Consequently, on balance, I am satisfied that there is sufficient evidence available to me that you did hit the patient in the face whilst she was being transported to the hospital.1 [20] Mr Zsombok then turns to whether there was a reasonable excuse for the substantiated conduct and considers Mr Danaher's submission that the contact with the patient was done 'reflexively' after the patient 'threw' a sats probe at him. [21] With regard to the alleged incident involving the 'sats probe', Mr Zsombok notes that the Student Officer's evidence is that the patient was waving and flicking her hand around with the sats probe on it and that the patient 'flicked' the probe off her finger and it landed on the floor near Mr Danaher's feet. Mr Danaher's evidence was that the patient threw the sats probe at him deliberately. Mr Danaher says that the verbal exchange outlined at [18] above supports his submissions that the probe was thrown at him. [22] Mr Zsombok says that a sats probe has a weight of about 19 grams and that even if the patient had thrown the probe at Mr Danaher deliberately, Mr Zsombok is not satisfied that it would have caused Mr Danaher any pain, let alone injury. Further, Mr Zsombok says that he does not consider that the patient throwing the sats probe at Mr Danaher is justification for him hitting the patient on the side of her face. Mr Zsombok says that he considers the contact, regardless of whether the sats probe hit him or not, 'inappropriate, disproportionate, and contrary to the limitations proposed by the Clinical Practice Manual – Use of Force.' [23] Mr Zsombok says that Mr Danaher's submission that the contact with the patient was done 'reflexively' appears at odds with his submission that the contact was an 'attempt to 1 Decision letter dated 11 August 2022, page 8. -- 9 of 22 -- 10 get her attention' and that he was 'hoping she would stop what she was doing'. Mr Zsombok says that these submissions imply some forethought in Mr Danaher's actions. [24] Mr Zsombok says that he is concerned that Mr Danaher is attempting to minimise the seriousness of his alleged conduct or justifying the conduct as a proportionate or appropriate response to the patient throwing or flicking the sats probe at him. Mr Zsombok says that in the record of interview, Mr Danaher acknowledges the inappropriateness of the conduct and that following the incident, he had communicated to the Operations Supervisor that he was concerned he may lose his job. Mr Zsombok considers that this is demonstrative of Mr Danaher's awareness of the seriousness of his conduct. [25] With regard to Mr Danaher's submissions regarding an event he said occurred earlier on the shift and his reflection that he could have withdrawn from duty, Mr Zsombok says that he has made enquiries in relation to the earlier attendance by Mr Danaher during his shift where a patient was violent towards him. With reference to the electronic Ambulance Report Form and Incident Detail Report and the evidence given by the Student Officer, Mr Zsombok says that he is satisfied that Mr Danaher did not report the incident on the night in question and did not produce any reports afterwards detailing the incident. [26] Mr Zsombok says that given Mr Danaher describes that event as 'one of the most physically and emotionally traumatic experiences in my career with Queensland Ambulance', he finds it difficult to understand why Mr Danaher did not lodge an incident report. Mr Zsombok says that even if he accepted Mr Danaher's description of the events, he is concerned that Mr Danaher has seemingly only raised the issue as a means to further justify or minimise his conduct. [27] Mr Zsombok states: I consider your submissions on the issue are self-serving and the lack of corroborating evidence regarding this earlier event gives me cause for concern regarding your credibility. For the reasons set out above, I am satisfied, on the balance of probabilities, that you inappropriately and without reasonable excuse, hit a female patient in the face with your hand whilst transporting the patient to hospital in an ambulance. I consider that the allegation is substantiated.2 Mr Danaher's reasons for appeal [28] Mr Danaher's Notice of appeal sets out his grounds of appeal and appears to provide statements in response to the number paragraphs set out in the decision letter. That is how I have determined to consider each of Mr Danaher's grounds of appeal. I have 2 Ibid page 11. -- 10 of 22 -- 11 considered the reasons for appeal in detail with reference to the decision letter and summarise them here: • The photo provided by Mr Zsombok is not a true depiction and the Student Officer's view was obstructed. • The Student Officer may have used the terms face and side of head interchangeably. • It is not necessarily easy to implement textbook theory into stressful practical situations and this was a serious, threatening situation. • The patient recoiled in surprise only, a heavy impact would have cause the Student Officer to remove her hand when contact was made. • 'Hit' is an equivocal term for any type of strike. • Mr Danaher reacted to the 'intent' of the patient and this 'preceded' his reaction. • His action was reflexive and occurred immediately. • Mr Danaher was assisted by a lawyer prior to making his statement. His response was 'simply a collaborative attempt to explain & rationalise a behaviour, which was out of character'. • Mr Danaher knew his actions were serious and he considered the worst case scenario of termination when speaking to the Operations Supervisor following the incident. • Mr Danaher says that he knows the patient was exaggerating her level of consciousness and no inference should be made from him forming a view that the patient was not as unwell as first thought. • Mr Danaher did not intentionally mock the patient. The witnesses statements 'make vague references, with no clear recollection of specifics.' • The incident Mr Danaher described as occurring earlier in the night occurred. Mr Danaher says that the Student Officer was not asked about that incident in her interview. • Mr Danaher says that he never recorded the incident he says occurred earlier in the night because he was not given time during his shift to complete the form and then his shift finished half way through. -- 11 of 22 -- 12 • With regard to his description of the event that happened earlier in the night as 'one of the most physically and emotionally traumatic experiences in my career with Queensland Ambulance', Mr Danaher says that these were not his words and that he was assisted in preparing his initial rebuttal by a lawyer, who reformulated his statements. Mr Danaher says that it 'was clearly an exaggeration' he 'was never comfortable with' but that it does not mean that it did not affect his state of mind later in the shift. • Mr Danaher believes that he was always been honest about the events. • Mr Danaher says that from the first moment he was confronted about the incident, he stated that he 'flicked' the patient on the side of the head with the back of his fingers. The Appellant says this is confirmed in Officer Johnstone's evidence statements. • Mr Danaher's description reflected an immediate recollection of events, exactly as they happened. The Respondent's submissions [29] The Respondent filed its written submissions on 15 September 2022. The are several annexures attached to the report including the Investigation Report.3 The Respondent's submissions address the matters listed in Mr Danaher's reasons for appeal. [30] With regard to Mr Danaher's statement that the photo provided by Mr Zsombok was not a true depiction of the view the Student Officer would have of the ambulance, the Respondent says: • It considered Mr Danaher's previous submissions that the Student Officer's view would have been obstructed. • The photo of the interior of the ambulance was requested by the delegate in response to Mr Danaher's claim. • The delegate never asserted that the Student Officer had an unrestricted view and this is conceded in the decision. • The delegate determined that even accepting the submission that the Student Officer had a restricted view, the Student Officer's evidence was largely corroborative of Mr Danaher's evidence. 3 Investigation Report dated 26 August 2021, Annexure 3. -- 12 of 22 -- 13 [31] The Respondent says that Mr Danaher's submission that the Student Officer may have used the terms face and side of the head interchangeably is mere speculation. [32] The Respondent denies the submissions Mr Danaher makes regarding the findings of the delegate with regard to the relevant Clinical Guidelines. [33] The Respondent submits that Mr Danaher's remarks regarding the reason the patient recoiled and the reaction the Student Officer would have had if the strike was more forceful are mere speculation and not supported by evidence. [34] The Respondent says that Mr Danaher's submission that the word 'hit' is an equivocal term for any kind of strike is irrelevant. [35] With regard to Mr Danaher's submission that the contact made with the patient was a reaction to the intent of the patient in throwing the sat probe, the Respondent submits that Mr Danaher could not have inferred any intent from a chemically sedated patient and, irrespective of any patient's intent, Mr Danaher's actions remain unacceptable. [36] With regard to Mr Danaher's submission that his action was 'reflexive', the Respondent submits that Mr Danaher's action was more aligned with his evidence at interview where he stated that the action was 'an attempt to get her attention' and that she was 'just being childish'. [37] With regard to Mr Danaher's submission that he knew his actions were serious and that is why he considered the worst-case scenario, the Respondent says that Mr Danaher's actions towards the patient do not show any self-reflection in considering what the worst case scenario would have been. The Respondent also submits that Mr Danaher did not comply with the relevant Clinical Practice Guidelines/Manual. [38] Mr Danaher submitted that the delegate drew an inference from Mr Danaher's submission regarding the patient's level of consciousness. The Respondent submits that the delegate drew no such inference. [39] In response to Mr Danaher's submission that he did not intentionally mock the patient and that the witnesses made vague recollections with no specifics, the Respondent says that it is irrelevant if any mocking of any patient is intentional or unintentional. [40] The Respondent submits that the Student Officer's evidence in relation to Mr Danaher's mocking of the patient is not vague, as documented in the Investigation Report.4 4 Ibid page 7, [6.1.11]. -- 13 of 22 -- 14 [41] With regard to Mr Danaher's submissions that the event he described as happening earlier in the shift had occurred as he says it did, the Respondent relies on the findings of the delegate set out at [30]-[34] of the decision (see [25]-[27] above). [42] Further, the Respondent says in response to Mr Danaher's submission that he was not able to submit a report about the incident, that a report could have been submitted at any time subsequent to the alleged incident. At the time the delegate considered the matter, a report for the earlier incident had not been submitted by Mr Danaher and a report has not been submitted since. [43] The Respondent says that several issues arise from Mr Danaher's submission that the words used in the show cause response describing the incident as one of the most physically and emotionally traumatic experiences in his career with Queensland Ambulance Service as not being his own words but those reformulated by his lawyer. The first is that it is central to Mr Danaher's credibility that he believes he has always been honest about the events. Secondly, the claim was made in a statement dated 30 June 2022 provided to the Respondent under Mr Danaher's own hand. The submissions provided on Mr Danaher's behalf by his lawyer does not contain that statement.5 [44] Further, the Respondent says that if, as Mr Danaher now claims, the statement is the result of some alleged professional misconduct of his lawyer, there is no evidence of this other than from the Appellant's submission. The Respondent says that without cogent evidence, Mr Danaher's late claim regarding his lawyer reformulating his statement should be rejected without cogent evidence. In any case, this claim was not before the delegate when determining the disciplinary findings and is not for consideration in this appeal. [45] The Respondent says that the relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:6 The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. [46] The Respondent submits that the delegate carefully considered all available material before him, including the submission made by the appellant in his response to the First 5 Ibid Annexure 5. 6 [2019] QSC 170, [207]-[209]. -- 14 of 22 -- 15 Notice to Show Cause and came to a conclusion, based on a balance of probabilities, the evidence before him, and not on inferences which have not been reasonably made. [47] The Respondent says that the disciplinary findings, the subject of this appeal and the decision-making process associated in making the decision was fair and reasonable. The Respondent says that the aim of disciplinary proceedings is for the protection of the public7 and the maintenance of public confidence.8 By analogy to Aldrich v Ross where it was held that the primary purpose of disciplinary proceedings against police officers was the maintenance of public confidence in the Police Service and the maintenance of integrity in the performance of the duties of police officers, the Respondent argues that these principles are equally applicable to the QAS and its officers.9 The Respondent therefore submits that the appeal should be dismissed. Mr Danaher's submissions in reply [48] On 29 September 2022, Mr Danaher provided his reply submissions. [49] Mr Danaher repeats his submissions regarding the view of events the Student Officer would have had and the photograph provided by the delegate. Mr Danaher continues to question the Student Officer's evidence regarding where he struck the patient and the level of force used in the strike. Mr Danaher says that the use of the term 'face', (and 'hit on the face' compared to 'flicked on the side of the head') is purposely inflammatory and misleading. Mr Danaher says that he is not attempting to minimise his conduct but that he is the only eyewitness to the events. [50] Mr Danaher says that the patient's behaviour was escalating and that she was deemed alert by the triage Registered Nurse prior to later being escorted off the premises, deemed capable by medical staff of being able to look after herself. [51] Mr Danaher does not understand on what grounds the Respondent denies his submissions regarding capacity to respond in line with the relevant clinical guidelines (or as he refers to them, textbooks). Mr Danaher says that he was already an experienced paramedic by the time 'this text' was ever published. Mr Danaher says that he learned through experience and emulating those with more expertise than himself. Mr Danaher says that he is an experienced negotiator and that 'Text-books are great references, but sometimes people just do not respond predictably or with rationality. Incidents can escalate very quickly, without warning'. [52] Mr Danaher says that the patient was not sedated and that being under the influence of alcohol or drugs is no longer a defence for offensive behaviour. Mr Danaher says 'Intent 7 Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [99]. 8 Police Service Board v Morris (1985) CLR 397, 412. 9 Aldrich v Ross (2000) 2 Qd R 235, [42]. -- 15 of 22 -- 16 is a judicial consideration in most crimes'. Mr Danaher says that the delegate attempts to excuse or downplay the patient's behaviour by using the term 'chemically sedated'. [53] Mr Danaher says that he may not have been clear in his initial interview. Mr Danaher describes the patient's behaviour and says that he felt the patient was being immature and that he initially attempted to gain her attention verbally, to make her see reason. Mr Danaher repeats his submission that there was no mocking, intentional or otherwise. Mr Danaher says that he used de-escalation techniques which were misrepresented by the inexperienced chief witness. [54] Mr Danaher says that he does not fill out a report if no significant injury is sustained. Mr Danaher says that the Respondent appears to be asserting that incident forms are completed routinely by all paramedics involved in any sort of minor incident. Mr Danaher says that he deliberately chose not to complete a report for fear of being accused of writing an alternative narrative and that he is prepared to write a statutory declaration, stating the incident occurred exactly as he described. Mr Danaher says that if the Student Officer has been asked and denied the incident earlier in the night occurred, then he is accusing her of being a liar. Mr Danaher calls for the Student Officer to be re- interviewed under oath. [55] Mr Danaher says that he is not accusing his lawyer of professional misconduct and that over the course of these proceedings, he has been assisted by three different lawyers. Mr Danaher maintains that the lawyer exaggerated his words and agrees that he signed off on the statement. [56] Mr Danaher submits that this disciplinary process 'was always going to be a pre- determined outcome'. Mr Danaher says that the misleading photograph; selective use of the term 'agreed evidence'; alleged informal re-interview; threats of fraud are evidence of this. [57] Mr Danaher says that the assault he experienced earlier in the evening is a key part of his defence and has been completely dismissed without justification. [58] In conclusion, Mr Danaher says: If I may, I will piece together a summary of my interpretation of 16 months of information gathering as presented by QAS. Apparently I was immediately judgemental and disapproving of this patient. At some point after she finished vomiting, she began to wave a saturations probe around, which was attached to her finger. She eventually flicked the probe from her finger, which incidentally hit me on its way to the floor. At this point, after a short period of reflection , I decided to retaliate by hitting her on the face with the back of my hand, rocking her head to the side. This I did in the presence of an impressionable witness, whom I barely knew; whom I assumed would have no problem with my actions and not bother telling anyone. Or did I consider my assault just long enough to play the odds -- 16 of 22 -- 17 that the patient wouldn't complain, but not consider who else was present? Or was I that angry that I just wanted to inflict pain regardless of the consequences? In truth this was a reflexive over-reaction by a stressed paramedic, in a stressful situation. It was an out of character moment in a 13+ years career. [59] On 6 October 2022, Mr Danaher sent further submissions by way of email. In those submissions, Mr Danaher is critical of the Respondent for not: viewing the case on its merits; probing witnesses to clarify ambiguous parts of their testimonies; re-interviewing witnesses; being open to the outcome; being fair and impartial. [60] Mr Danaher repeats his submission that the Respondent was working toward a pre- determined outcome. Mr Danaher repeats that the decision has been heavily weighted in favour of the two witnesses, who he says had a limited view and cannot recall specifics. [61] Mr Danaher suggests that Officer Johnson and the Student Officer have colluded and that this is because Officer Johnson's testimony is tainted with an underlying tension and vindictiveness. [62] Mr Danaher says that the Respondent's version of events is not realistic and that the incident was clearly not a deliberate assault. [63] Finally, Mr Danaher says: Throughout my career I have been threatened, assaulted, attacked, kicked, punched and spat on. I soldiered on without complaint. I turned up for work, and just got on with it. I had over 600 hours of sick leave accumulated. Sometimes I even laughed and joked during the retelling of these incidents with colleagues. That's how we cope. Sometimes our guard is down – in that brief moment I just simply reacted – I'd just had enough. The investigative process, for me, was never about denial, protesting my innocence, justification, or minimising my actions. I expected an independent insight from an independent arbiter: a final decision based on a reasoned consideration of all the facts. This process has been anything but professional. If I can change anything, I hope I can change the process for the next person, who may have a 40 year career ahead of them. I appreciate your insight. Consideration [64] I have considered all of the information and submissions provided to me. Specifically, I have read all of the show cause material, the decision letter, the submissions of the parties, the relevant documentation and the Investigation Report in its entirety. The Investigation Report [65] With regard to the Investigation Report, I note Section 9.0 on page 20 and 21 where the investigator sets out his conclusions: -- 17 of 22 -- 18 9.0 CONCLUSIONS 9.1 ACP Danaher admits he struck the patient and refers to a strike of the side of the patient's head. Student [redacted] states she was holding the patient's head with both hands at the side of the patient and ACP Danaher's right hand came into contact with her hand with enough force to move her hands and the patient's head. 9.2 ACP Danaher admitted to ACP Johnstone and to OS Ross and during interview that he struck the patient's head after she threw a SATS probe at his torso. 9.3 Student [redacted] does not recall the probe hitting ACP Danaher but falling to the floor at his feet. 9.4 ACP Danaher stated he struck the patient because she threw the probe at him and it was reflexive. 9.5 Paramedics undergo training to deal with possible danger to themselves by undertaking a POP assessment, de-escalating and removing themselves out of harm's way. 9.6 ACP Danaher's response to a SATS probe (weight of 19 grams) being thrown at him or in his direction is disproportionate to the 'flick' or strike by ACP Danaher to the patient's head/face. ACP Danaher did not report any injury to himself. 9.7 The CPM – Use of Force outlines that paramedics have tacit consent to use force against a patient, however, the situation in the present case does not authorise the force admitted to by ACP Danaher. 9.8 ACP Danaher states that he had been previously struck by a patient at the Watchhouse who kicked him earlier in the shift. There is no information to support this version in the EARF for this case. There is no SHE report from ACP Danaher to indicate he had suffered any injury or harm from any kick by the patient in this case. This case is independent to the present case and there is no defence that may be relied upon from this case. 9.9 ACP Danaher stated that the patient in this case was attempting to kick him whilst she was on the stretcher. He also admits that the patient was securely fastened by seat belts on the stretcher. These seat belts include fastening to the patient's legs. [66] The investigator goes on in Section 10.0 to state that if the delegate accepts the evidence, on the balance of probabilities, Allegation 1 is capable of substantiation. [67] Having considered Investigation Report and after taking into account Mr Danaher's criticisms of it, I find that it was open to the Investigator to determine that on the balance of probabilities, the allegation is capable of substantiation. [68] There is nothing in the material, including Mr Danaher's own evidence, which serves to set aside the finding of the Investigator that Mr Danaher struck the patient on the head or face and that the flick or strike was disproportionate to the patient throwing a SATS probe weighing 19 grams in his direction or at his torso. -- 18 of 22 -- 19 Procedural fairness [69] I have reviewed all of the material made available to me, including the First Show Cause Notice, Mr Danaher's response to the show cause notice, submitted on his behalf by his legal representative; Mr Danaher's supplementary response to the First Show Cause Notice; and the Second Show Cause Notice (decision subject of appeal) which informs Mr Danaher of the appeal entitlements he has exercised in lodging this Public Service Appeal. It is also clear that Mr Danaher had the benefit of legal advice and representation at various times throughout the process and prior to his investigation interview. [70] I am satisfied that Mr Danaher has been afforded procedural fairness throughout the disciplinary process so far. [71] Mr Danaher submits that the delegate had 'pre-determined' the outcome. It seems to me that the delegate gave consideration to all of Mr Danaher's submissions, but ultimately found that the allegation was substantiated and that there were grounds for discipline. I understand that Mr Danaher disagrees with the outcome, however I do not find that there is evidence that it was 'pre-determined'. Mr Danaher's grounds of appeal [72] There is significant overlap between Mr Danaher's show cause responses, the summary of his responses in the decision letter, his reasons for appeal and his submissions. I've approached the appeal by piecing together the various documents available to me in order to consider each of Mr Danaher's appeal grounds. [73] With regard to Mr Danaher's submissions that the photograph is not accurate and the Student Officer's view was obstructed, it is clear that this submission was taken into account by the delegate who determined that despite the Student Officer's view being obstructed, her statement and that of Mr Danaher largely corroborated each other. I do not find Mr Danaher's concern about the photo or the Student Officer's version of events given her obstructed view make the decision to substantiate the allegation unfair or unreasonable. [74] Mr Danaher raises concerns about the use of the words 'face' or 'head'. I find that it was open to the delegate to determine that regardless of whether the admitted contact was made with the patient's face or the head, it was inappropriate. With regard to the use of the terms 'flick', 'strike', and 'hit', I note that the terms appear to be used interchangeably at various times. In circumstances where the evidence demonstrates, on the balance of probabilities, that even if the contact was a 'flick', it was done with some degree of force with the intention of addressing the patient's behaviour, I find that the interchangeable use of language does not serve to make the decision unfair or unreasonable. -- 19 of 22 -- 20 [75] I understand Mr Danaher's submission that it is not necessarily easy to implement text- book theory into stressful practical situations. However, the Clinical Guidelines and Policy exist for a reason and set a clear expectation of what is expected of Officers. I note that the Policy envisages situations where an Officer feels unsafe or is required to use some form of force. It appears clear that in this situation, Mr Danaher did not feel at risk to the extent that he needed to exit the situation by asking his colleague to stop the vehicle. It also seems clear that the behaviour of the patient in flinging an item weighing 19 grams at Mr Danaher or in his direction did not warrant the use of force envisaged in the Guidelines or Policy. Mr Danaher says that he was in a stressful, serious and threatening situation. However, for reasons I will address below, I find that it was open to the delegate to determine that Mr Danaher's reaction was not one that was instinctive or for self-protection but was done with some thought and intent. [76] Mr Danaher agrees that the patient recoiled but says that it was in surprise and not as a result of the force used. I find that the only person who would be in a position to say why the patient recoiled is the patient themselves and they were not interviewed. In any case, in circumstances where I find it was open to the delegate to determine that the contact was not appropriate, I do not find Mr Danaher's opinion of why the patient reacted as she did serves to make the decision unfair or unreasonable. [77] Mr Danaher submits that his action was reflexive and occurred immediately. However, this appears to be in conflict with his other evidence that the 'flick' was 'just an attempt to get her attention' and that 'it was just a flip to get her attention hoping that she would stop what she was doing, realise that you know she was just being childish'. It is difficult to reconcile Mr Danaher's description of the 'flick' being a strategy to intervene in the behaviour with his alternative description that he acted on instinct. I find it was open to the delegate to find that there had been some forethought in Mr Danaher's reactions. [78] I have considered all of the submissions regarding the allegation that Mr Danaher was 'mocking' the patient. This behaviour does not form a part of the substantiated allegation, although I note that the delegate considered that behaviour in the context of determining that the 'flick' or 'hit' occurred in circumstances where Mr Danaher was already not treating the patient with courtesy or respect. I have considered Mr Danaher's submissions that he believed the patient was deliberately trying to appear more unwell than she actually was, and that he believed the patient was tyring to avoid arrest so that she could be taken to hospital and then be released to go home. Having taken into consideration the Investigation Report and the submissions, I find it was open to the delegate to determine on the balance of probabilities that Mr Danaher was not treating the patient with courtesy and respect in the way that he was speaking to her or behaving toward her. [79] I have considered Mr Danaher's description of an event that occurred earlier in the evening and his submission that it was that incident that caused him to react in the way he did with the other patient later in the evening. I accept that earlier in the night, Mr Danaher attended on a patient at the Watchhouse. However, the evidence simply -- 20 of 22 -- 21 doesn’t establish that an incident of the traumatic, threatening or serious nature described by Mr Danaher actually occurred as he describes. I am troubled that Mr Danaher submitted a signed statement describing the incident as one of the most traumatic experiences of his career but when questions were raised regarding the veracity of his claims, he has stepped back from that claim and stated that his lawyer had reformulated his words and that this claim was clearly an exaggeration. Mr Danaher says that the Respondent's submissions make it sound as though paramedics are filing incident reports for all sorts of minor issues. This submission carries little weight when Mr Danaher has himself claimed that the incident was of such a serious nature that it is the main reason or defence he has with regard to the allegation. I find it was fair and reasonable for the delegate to determine that there was no evidence of a serious incident happening earlier in the night. [80] Mr Danaher's closing submissions refer to his length of service and state that in his time with the QAS, he has been 'threatened, assaulted, attacked, kicked, punched and spat on'. While I have no doubt that Mr Danaher has confronted these behaviours during his '13+'years, there is no evidence that the patient Mr Danaher is alleged to have hit was demonstrating any of these behaviours. Mr Danaher is a very experienced officer and I find it was open to the delegate to determine that, having taken into account all of Mr Danaher's submissions, on the balance of probabilities, the allegation was substantiated. Grounds for discipline [81] Having determined the Allegation substantiated, the delegate went on to determine that Mr Danaher was guilty of misconduct pursuant to s 18A of the Ambulance Service Act 1991. [82] That section of the Act provides a definition of misconduct at s 18A(5)(a) which reflects the definition of misconduct in the PS Act. With regard to the definition of 'misconduct', Merrell DP has said that: In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.10 [83] Mr Danaher's appeal grounds do not make specific reference to the grounds for discipline determined by the delegate. It follows that the Respondent does not make specific submissions in support of the grounds for discipline. For completeness, I have reviewed that part of the decision and address it here. 10 Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62]. -- 21 of 22 -- 22 [84] With reference to his determination that there are grounds for discipline based on Mr Danaher being found guilty of misconduct, the delegate says: The evidence in this matter raises serious concerns regarding your behaviour. As a QAS employee you occupy a unique position of trust and responsibility. Your actions do not project the desired image of a QAS employee. I am satisfied that your conduct was not because of mere negligence, error of judgement or innocent mistake. Instead, your conduct was the result of a conscious and deliberate act, which was far removed from normal accepted standards and behaviours expected of QAS employees. Indeed, your actions were an abuse of the privilege and confidence bestowed on a QAS employee and did not project the desired image of a QAS employee. In the circumstances, I do not consider finding your conduct to amount to a breach of the Code of Conduct sufficiently reflects the seriously inappropriate nature of your conduct. On the evidence available to me and for the reasons set out above, on the balance of probabilities, I am satisfied you engaged in conduct that was a deliberate department from accepted standards and demonstrated, at the very least, serious negligence to the point of indifference. Indeed, your actions were an abuse of the privilege and confidence enjoyed by ambulance officers and did not project the desired image of a QAS employee. Accordingly, I have determined that a disciplinary finding is made against you in relation to the Allegation. [85] It is clear that a finding of misconduct requires there to have been some kind of deliberate departure from accepted standards. Having found the allegation substantiated on the balance of probabilities on the basis of a finding that Mr Danaher's contact with the patient was intentional and involved some forethought, I find that it was open to the delegate to characterise the conduct as misconduct as provided for in s 18A of the Ambulance Service Act. [86] For the foregoing reasons, the decision appealed against is confirmed. Order [87] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. -- 22 of 22 --