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WARNING! THE FOLLOWING MAY BE DISTRESSFUL TO SOME PEOPLE. IN THESE FRAGILE TIMES, IF YOU EXPERIENCE SUICIDAL THOUGHTS, I URGE YOU TO RING LIFELINE ON 13 11 14.

Introduction

Read the full decision here. https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc2193.htm

When a paramedic in charge of an incident scene makes a (huge) error and in the circumstances of a 15-year-old boy who hanged himself died. The Deputy President’s decision in this matter was gruesome in its description and was extremely damning of the applicant.

One can only guess, what the further actions of the applicant and/or other (medical?) authorities may follow. On my reading of the decision, the applicant would have been better served by immediately acknowledging that she made a (fatal?) mistake and relied on her 19 years of experience and possible “burn-out”. Instead, she denied all and everything and was found incredibly wanting by the FWC. An appeal may be possible, but an appeal cannot be granted to simply rerun her case. A tragic end to a young boys life. A tragic end to a paramedic’s career.

Background

The applicant was employed in the position of Mobile Intensive Care Ambulance (MICA) Paramedic. On 21 February 2019 Ms Hay’s employment was summarily terminated for serious and wilful misconduct following 19 years of employment with the respondent, 10 years of which she was employed as a Paramedic for approximately 10 years.

The dismissal related to her attendance to a 15 year old boy presenting in cardiac arrest due to intentional hanging.

Chronology of events

  • On the evening of 2 October 2017, at 20.37 AV a 000-emergency call was received to attend a 15-year-old boy presenting in cardiac arrest due to intentional hanging.
  • Ambulance crews were immediately despatched, including the Helicopter Emergency Medical Service.
  • Unfortunately, despite heroic attempts by the ambulance people to resuscitate the victim, he died as a result of his injuries.
  • Following clearing the scene each attending crew completed an electronic patient care record (ePCR) in relation to the incident.
  • The respondent later undertook a clinical case review of the circumstances of the incident. This report concluded that:

This unfortunate case highlighted circumstances where significant emotion, cognitive overload / bias’s and unprofessional behaviour lead to poor communication, clinical decision making / judgement, loss of situational awareness and an ineffective team working environment.

The initial incorrect rhythm recognition and failure to rapidly address the patient’s airway obstruction may have further impacted on the likelihood of achieving ROSC. Once the patient’s obstruction was adequately removed and effective ventilation / oxygenation restored, significant improvements in skin colour and changes in ECG rhythm / ETCO2 were observed.

The patient did not receive the expected AV standard of minimum 30 minutes ACLS resuscitation. Furthermore, compelling evidence existed to continue resuscitation based on age, changes in skin colour, ECG rhythm and ETCO2 affording the patient and the patient’s family every opportunity to achieve ROSC.”

  • On 30 November 2017, the respondent advised the applicant that she was placed on alternative duties effective that day due to concerns it had regarding her clinical practice and behaviour associated with her clinical practice. It also advised her that a review process of her clinical performance would be undertaken. This review was undertaken by the Professional Conduct Unit (PCU).

  • On 14 March 2018, the respondent advised the applicant in writing that:
    • The PCU review process was concluded;
    • Allegations of misconduct concerning the applicant’s professional conduct during attendance at the incident had been made against her (Allegations); and
    • An independent external Investigator (Investigator) had been engaged to conduct an investigation into the Allegations.
  • The Allegations were as follows:

Allegation 1

  1. On 2 October 2017, when in attendance on a 15-year-old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you failed to take reasonable care for the health and safety of the patient as follows:

1.1 You directed the treating paramedics to cease resuscitation on the patient in circumstances where:

(a) you were aware that there were ‘compelling reasons’ to continue resuscitation, namely:

(i) the patient was under the age of 18 years; and

(ii) ‘signs of life’, including an accelerated idioventricular rhythm, heart rate 96, ETC02 80 mmHg and significant improved skin colour

(b) you were aware that resuscitation by [the respondent] had been undertaken for approximately 23 minutes and the minimum expected timeframe for resuscitation is 30 minutes prior to cessation and/or it was premature to cease resuscitation.

“Allegation 2

On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present you were the scene leader, you failed to take reasonable care for the health and safety of the patient by unreasonably dismissing advice regarding ‘compelling reasons’ to continue resuscitation which were brought to your attention by the Paramedic Educator on the scene, Mr Alan Snow, as follows:

Shortly after you arrived on the scene at 20:59, the ALS Paramedic Educator on scene, [name], advised you that there was some spontaneous cardiac activity. You dismissed [name’s] advice and said words to the following effect ‘That is artefact’. [Name] replied that it was not artefact because he could see clear complexes.

At or around 21:00, [name] advised you that there was a clear narrow complex rhythm. You dismissed [name’s] advice and said words to the following effect: ‘The rhythm is adrenalin driven’. You instructed…(ALS Paramedic Clinical Instructor) not to give any more adrenalin to the patient.

After returning to the patient following a conversation with the patient’s parents, you stated that the family had requested that resuscitation cease. [name] again advised you of changes in the patient’s ECG rhythm/ETC02, in particular, that there was a clear rhythm. You dismissed [name’s] advice and replied ‘I am not going to f**k with the family.’

Allegation 3

On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you misled the patient’s family as to the utility of continuing with resuscitation on the patient, where there were ‘compelling reasons’ to continue resuscitation and you had been on scene for approximately only 3 minutes.

Allegation 4

 On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you made at least two unprofessional and disrespectful comments regarding the patient and the patient’s family in your communications with other attending paramedics as follows:

you described attempts at continued resuscitation on the patient as ‘flogging a dead horse’; and

when you were advised of clinical changes to the patient you responded by saying ‘I am not going to f**k with the family’.

If substantiated, the Allegations were stated to be variously in breach of the respondent’s Code of Conduct, Clinical Practice Guideline Withholding or Ceasing Resuscitation and certain [other respondent’s] policies.

  • The respondent immediately[ advised the applicant that she be suspended on full pay with immediate effect.
  • On 15 June 2018, the applicant filed an application for the FWC to deal with a dispute pursuant to the dispute settlement procedure (First Dispute Application). The First Dispute Application was resolved following a conference before the Commission on 25 June 2018.
  • On 28 June 2018, the applicant, together with her legal representative, attended an interview with the Investigator to provide her response to the Allegations. The interview was recorded and transcribed. The applicant was subsequently provided with a transcript of her interview with the Investigator (Interview Transcript) and on 17 July 2018 Ms Hay confirmed to the Investigator that she had read the Interview Transcript and that it was accurate. She indicated this by signing each page of the Interview Transcript.
  • On or about 30 August 2018, the Investigator concluded the Investigation and provided the respondent with an investigation report.
  • On 13 September 2018, the PCU created a briefing note that informed the respondent’s Chief Operating Officer (COO) of the Investigation findings. That briefing note recommended that disciplinary action, in the form of termination of employment, be taken against the applicant for serious and wilful misconduct.
  • On 24 September 2018, the COO advised the applicant in writing that the Investigator had found Allegations 1 and 3 substantiated, Allegation 2 partially substantiated and Allegation 4 not substantiated and advised that the respondent intended to terminate the applicant’s employment. It offered the applicant 10 days to show cause why the respondent should not carry out the dismissal.
  • On 6 October 2018, the applicant provided her show cause response and filed a second notification to the FWC. The Second Dispute Application did not resolve.
  • The applicant file a third dispute notification to the FWC; however, this was foreshadowed by the applicant’s dismissal from employment.
  • The applicant responded by filing a fourth dispute notification to the FWC.
  • The respondent invited the applicant to a meeting to discuss the decision to dismiss her employment, but she declined requesting instead that the reasons be put in writing to her.
  • On 21 February 2019, the respondent provided the applicant with a letter of termination, confirming that she had been summarily dismissed from her employment for serious and wilful misconduct.

Applicant an “unimpressive” witness

The Deputy President found the applicant:

“…to be, generally, an unimpressive witness. Her evidence lacked spontaneity and appeared overly considered, she was reluctant to make concessions where they appeared warranted and appeared to give her evidence with a view to its strategic and forensic advantage. [Her] evidence as to the events of 2 October 2017 is largely inconsistent with the evidence of the other Paramedics who attended the scene…”

The applicant called a number of witnesses, both to testify on her character and as “expert” witnesses. None of which attended the incident and to which, ultimately, the DP attached little weight.

The FWC is an Administrative, Quasi-Judicial tribunal

The DP felt the need to explain that the FWC is in fact an “administrative, quasi-judicial tribunal”, in that the FWC is required to take into account relevant considerations, and to ignore irrelevant considerations. Relevant considerations are found in “material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.”

If the material has probative value the weight to be attached to it is a matter for the decision-maker. The Commission should consider and carefully weigh all relevant material, including circumstantial evidence, and where appropriate draw reasonable inferences.

The FWC is not bound by the rules of evidence, although it tends to follow them. Ultimately, the Commission is obliged to perform its functions in a manner that is fair and just.

Valid reason and serious misconduct: the rules

The DP reminded that:

“In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.

“Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw, the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained” and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “circumstances pointing with a wavering finger to an affirmative conclusion”. The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.

“The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. In Greyhound Racing Authority, Santow JA noted:

‘… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal]’

“The ‘level of comfort’ referred to means that the finder of fact must ‘feel an actual persuasion of the occurrence or existence of the fact in issue’ the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.’”

The DP (later in the decision) stated in relation to a valid reason:

“It is well established that for the purposes of section 387(a) it is not necessary to demonstrate conduct sufficiently serious on behalf of the employee to justify summary dismissal in order to demonstrate that there is a valid reason for the employee’s dismissal. Nor is the existence of a valid reason to be assessed by reference to any legal right to dismiss. In He v Lewin Gray and Mansfield JJ made the following comments in relation to whether there can be a valid reason for dismissal, notwithstanding non-compliance with a contractual right, an award or an agreement:

In a given case, it would be open to the Commission to determine that there was no valid reason for termination of the employment, even if the employer had a legal right to terminate the employment.

Conversely, it would be open to the Commission to find that there was a valid reason, of the kind contemplated by the provision, even if the termination was in breach of the contract of employment, an award or a collective agreement…It would be open to the Commission to proceed straight to the questions it is required to determine ignoring any question of legal rights.

“Accordingly, the majority held that it is open to the Commission to find that there is a valid reason even if the termination is in breach of an enterprise agreement. In Martine Magers v Commonwealth of Australia (Department of Health and Ageing) the Full Bench of the Commission referred to a number of authorities and said:

These cases demonstrate that the existence of a valid reason does not depend on consistency with requirements for termination for other purposes such as the requirement of an enterprise agreement, legislation or the common law. A valid reason is one which is sound, defensible and well-founded. If a termination is inconsistent with some other obligation, that is a factor to be considered under other criteria relevant to the overall consideration in the matter.

Was there a valid reason for dismissing the applicant’s employment?

It was agreed by the parties that the allegations made against the applicant are of the utmost seriousness and that the Commission requires a high degree of satisfaction that the alleged misconduct engaged in had occurred. The DP advising:

“I note that the Act requires me to consider whether there was a valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. Further, it is well-established that a valid reason need not necessarily be the one relied upon by the employer. [The respondent] has advanced several valid reasons for the termination of [the applicant’s] employment”. [Emphasis added].

The DP went to examine all the allegations made against the applicant and in doing so described in great detail (which I have decided not to include in this report) the incident.

The DP also examined the role of the paramedic and quoted evince given by one of the respondent’s employees who testified that as scene leader the applicant was ultimately responsible for the care of the patient. Stating that the following exchange occurred between the Bench and Mr Stephenson:

Is this documented somewhere?—In some instances it is, but by and large no, it’s custom and practice. And as I say, it’s entrenched. It’s taught. When you are being trained as a MICA Paramedic, scene leadership and managing other paramedics at the scene is very much a focus of what we do. It’s part of our position description and, as I say, there isn’t a paramedic in Victoria who would not understand that the senior MICA Paramedic is not the person responsible.”

“I therefore find that [the applicant] assumed leadership of the scene on 2 October 2017. I find that although this operated within a co-operative collegiate model, as the MICA Paramedic scene leader Ms Hay was responsible and accountable for managing the scene and directing Lachlan’s care. I find that as the scene leader she was responsible for the decisions made at the scene”.

In her final written closing submissions, the applicant appears now to concede that her initial assessment that the victim had died was mistaken but that it was reasonably open to her on the information available to her at the time. The DP:

“I reject that submission. Firstly, it is inconsistent with [the applicant’s] evidence before the Commission. Her evidence, as set out above, was that it was “very clear” to her at 21.00 that [the victim] had died. Further, under cross-examination she maintained her position that [the victim] was dead saying:

‘…I still think he was dead and I have- I’m sorry, I haven’t changed my mind. He was dead’.

Overall, the DP found the applicant lacked credibility and rejected her submissions outright. Doing so, only after forensically going through the incident in minute detail. Finding that the applicant:

“…did not meet that standard in respect of each of the Treatment Findings.

“[And]…I have also found that [the applicant]:

    • made the Horse Statement;
    • made the Family Statement; and
    • was dishonest during the Investigation as to the reasons for the cessation of resuscitation”.

The DP concluding:

“I consider [the applicant’s] breaches of her obligations as a MICA Paramedic to be profound and significant. I consider those breaches provided [the respondent] with sound, defensible and well-founded reasons for dismissal related to [the applicant’s] capacity”.

Opportunity to respond to reasons for dismissal (section 387(c))

The DP in consideration of this point, stated that:

“The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a common-sense way: the focus of the consideration is whether the employee is treated fairly, rather than any formality”.

In finding that the process provided adopted by the respondent provided the opportunity for the applicant to respond to allegations:

“As to [the applicant] misleading the Investigator, this only became apparent after [the applicant’s] evidence before the Commission and [the applicant] therefore was not, and could not have been, given an opportunity to respond to this reason”.

Did the applicant engage in serious and wilful misconduct for the purposes of the enterprise agreement?

The DP thought so:

“In my view, the making of the Statements was a serious matter, and of sufficient gravity to constitute serious misconduct. The language used by [the applicant] in the Family Statement was profane and dismissive. The Horse Statement, in the context of the resuscitation of a 15-year-old boy who has hanged himself, was both highly inappropriate and deeply offensive and debasing. I do not consider that the seriousness of the Statements is in any way lessened because the family did not hear them. The Statements were not inadvertent. In my view, the conduct clearly contravened [the respondent’s] Code of Conduct…Further, in my view, even absent the obligations under the Code of Conduct, in the circumstances in which they occurred the Statements are manifestly unacceptable and offensive and amount to serious and wilful misconduct for the purposes of [the enterprise] Agreement”.

The DP further adding:

“I consider [the applicant’s] dishonesty during the Investigation as to the reason for the cessation of resuscitation to also amount to serious misconduct. [The applicant] had an obligation to answer the Investigator’s questions honestly. She did not. Her dishonesty was not inadvertent. Such conduct is inconsistent with [the applicant’s] obligations as an employee. Further, [the applicant’s] dishonesty was about a significant matter…”

Personal circumstances of the applicant

The DP considered the applicant’s age, length of service, employment history and her personal and economic circumstances; and considered that dismissal has had a very significant effect. However, the DP was not satisfied that these factors negate the seriousness of the misconduct engaged in by the applicant.

“Very serious misconduct”

Given the tone of the decision to this point it is unsurprising that the DP concluded that the action taken by the respondent in dismissing the applicant was a proportionate response; adding:

“…I have found that [the applicant] engaged in serious and wilful misconduct within the meaning…the [enterprise] Agreement. Even considered in isolation, in my view, each of the matters I have found to be a valid reason constitutes serious and wilful misconduct. I consider [the applicant’s] conduct on 2 October 2019 was a matter of the utmost seriousness”.