Costello v State of Queensland (Department of Health Queensland Ambulance Service) (No. 2)
[2019] QIRC 94
•25 June 2019
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Costello v State of Queensland (Department of Health - Queensland Ambulance Service) (No. 2) [2019] QIRC 094 |
PARTIES: | Costello, Jay v State of Queensland (Department of Health - Queensland Ambulance Service) |
CASE NO: | TD/2016/103 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 25 June 2019 |
HEARING DATES: | 17 March 2017 |
MEMBERS: HEARD AT: | Bloomfield DP Brisbane |
ORDERS: | 1. The application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - TERMINATION OF EMPLOYMENT - whether termination harsh, unjust or reasonable - where dismissal followed investigation and show cause process - where allegation Applicant misappropriated methoxyflurane whilst on duty - where allegation Applicant self-medicated with methoxyflurane whilst on duty - where allegation applicant not documented opioid discards according to Drug Management Code of Practice - where Applicant claims distressed about his daughter’s medical condition - whether Applicant suffered a panic attack - whether symptoms exhibited were of a panic attack or methoxyflurane use - witness evidence - burden of proof - balance of probabilities - Briginshaw standard applied - witness credibility - circumstantial evidence - high probability applicant used methoxyflurane - application dismissed. |
LEGISLATION: CASES: | Industrial Relations Act 1999, s 73(2), s 74, s 75(1) Industrial Relations Act 2016, s 1023 Blows v Townsville City Council [2016] QIRC 66 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914 Wady v YMCA Canberra [1996] IRCA 568 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 |
APPEARANCES: | Mr E. Shorten, Counsel instructed by Ms L. Napper of Cube Workplace Solutions, for the Applicant. Mr J. W. Merrell, Counsel instructed by Ms L. Koger of Crown Law, for the Respondent. |
Decision
On 31 October 2016 Mr Jay Costello was dismissed from his role as an Advanced Care Paramedic with the Queensland Ambulance Service (QAS) by correspondence from Mr Craig Emery, Deputy Commissioner, State Local Ambulance Service Network (LASN) Operations. His dismissal followed an investigation and subsequent show cause process in relation to an event which occurred at the Robina Hospital during the early evening of Thursday 2 June 2016. Mr Costello has applied to be reinstated to his former position on the basis that his termination was harsh, unjust and unreasonable.
Background
On 2 June 2016 Mr Costello was rostered to work a shift operating out of the Southport Ambulance Station commencing at 1.00 pm and ending at 11.00 pm. Other officers working with him on that shift were Mr Patrick Hoey, who commenced employment with QAS as a Graduate Paramedic in January 2016, and Ms Erin Wacker, a Student Paramedic. This was the first time Mr Costello had worked with either officer, although Mr Hoey and Ms Wacker had worked together over the previous two days.
In the late afternoon/early evening they all attended an elderly lady who had fallen over in her backyard and had dislocated, or fractured, her shoulder. She was given a Penthrox methoxyflurane inhaler with 3 ml of methoxyflurane to help her relieve her pain. Because she had soiled herself she was moved to her house to be cleaned up before being put on a stretcher and placed in the ambulance.
Before the ambulance left the premises a further 3 ml of methoxyflurane was loaded into the inhaler to assist the patient with her pain management while a number of unsuccessful attempts were made by Ms Wacker and Mr Costello to insert a canula to allow morphine to be administered intravenously. Mr Hoey was ultimately successful in cannulating the patient. In accordance with the usual practice of rotation from job to job, Mr Hoey drove the ambulance while Mr Costello and Ms Wacker sat in the back of the ambulance. During the trip 5 ml of morphine was administered to the patient in two x 2.5 ml doses.
After arriving at Robina Hospital the three officers and their patient were ramped while they waited their turn to be processed by a nurse at the triage desk and admitted to the Emergency Ward of the Hospital. Some 22 minutes later (based on time elapsed as measured by CCTV coverage) Mr Costello excused himself (to Mr Hoey) to go to the bathroom.
What followed after that is recorded in contemporaneous notes prepared later that evening by Mr Hoey, a Mr Troy Bakens - Registered Nurse employed at the Hospital, and another Ambulance Officer, Ms Susannah Garrett, respectively.
Contemporaneous note of Mr Hoey
From: Patrick Hoey
Sent: Thursday, 2 June 2016 10.58 PM
To: Terence Dickson (Acting Operations Supervisor)
Subject: Patrick Hoey - Description of events 02/06/16 - Case no 07663655The following is a recount of the events which occurred during and after case 07663655.
· Officer Patrick Hoey and Officer Jay Costello were working together on a 1300-2300 shift on the 02/06/16.
· Throughout the day officer Jay Costello had disclosed to officer Patrick Hoey that his daughter was under investigation for a rare disease and nothing more was said of it.
· Officer Patrick Hoey and Jay Costello, along with a university student had been dispatched to an 86YOF with a dislocated shoulder, query fracture.
…
· On arrival at Hospital, during triage the patient was given the remaining 5 ml morphine in 2.5 ml increments 5 minutes apart as she was still in pain.
…
· Soon after Officer Costello and Erin Wacker were triaged, Officer Jay Costello stated to Officer Patrick Hoey that he was going to the bathroom.
· …
· Approximately 10 minutes passed and a nurse (Mr Bakens - see contemporaneous note below) came and asked Officer Patrick Hoey if he was working with Jay.
· The nurse stated that he had witnessed Jay stumble out of the toilet near short stay at Robina Hospital and had almost fallen over.
· The nurse stated Jay had bloodshot eyes, seemed quite upset and "just off".
· The nurse stated that when approached to see if he was ok Officer Costello stated he had "just had a vasovagal episode and he was fine".
· A female paramedic from Burleigh (Advanced Care Paramedic Susannah Garrett) had overheard this conversation between the nurse and Officer Patrick Hoey.
· The female paramedic has assisted Officer Patrick Hoey in searching for Officer Jay Costello as both officers had concerns based on what the nurse had said.
· Officer Patrick Hoey and the Burleigh officer were unable to locate Officer Costello in the toilet where the nurse had stated he was seen.
· Officer Hoey and the Burleigh officer proceeded to knock on a locked toilet door at the far end of acute in Robina Hospital.
· As there was no answer, Officer Hoey unlocked the toilet door and found Officer Costello sitting on the toilet.
· Officer Hoey and the Burleigh officer observed Officer Costello sitting on the toilet with his pants on, elbows on his thighs and had his head facing down.
· The toilet seat was down and initially Officer Costello did not notice the other two officers standing at the door, there was the distinct smell of Methoxyflurane surrounding Officer Costello.
· Officer Costello had a Penthrox whistle in his hand, with the wrist strap around his wrist, he appeared glassy eyed and emotional as well as having bloodshot eyes.
· Officer Hoey reassured and then questioned Officer Costello on what he was doing, from the best of Officer Hoey's recollection, he stated he just needed some time and will be right in a few minutes, however seemed quite slow and confused with his answers.
· Officer Hoey took the Penthrox whistle from Officer Costello and held onto it until it was disposed of in the bin near the write up room.
· Officer Costello came out of the toilet shortly after and approached Officer Hoey and the Burleigh officer.
· Officer Hoey told Officer Costello that he should not be working in this head space, and instructed the Burleigh officer to take him out to the ambulance bay for some fresh air.
· Officer Hoey then went and disclosed the events which had occurred to the A/Operations Supervisor Terence Dickson.
· Officer Costello and Erin Wacker completed the paperwork, Officer Hoey was unable to check or sign the paperwork before it was completed.
· Officer Costello seemed quite upset and emotional and had agreed that he was not the (sic) in the right frame of mind to be treating patients.
· Officer Hoey returned to 601501 to make sure the student was ok and helped clean the truck as the A/OS determined the best plan of action given the circumstances.
· Officer Hoey and Erin Wacker returned to Southport station shortly after where this document was composed.
This is a recollection of events to the best of my memory, if there are any questions, please do not hesitate to contact me at any time convenient to yourself.
Contemporaneous note of Mr Bakens
From: Troy Bakens
Sent: Thursday, 2 June 2016 8:50 PM
To: Brett Sellars (Clinical Nurse Consultant)
Subject: Incident - Thursday 2/6/16As per our discussion.
· The QAS officer slowly exited the toilet with a very unsteady gait.
· The QAS officer had to hold himself up with both hands on each side of the wall, his eyes appeared red, bloodshot and glazed.
· His speech appeared slow and slightly incoherent at times.
· I repeatedly informed him that he did not look ok and that he should get looked over.
· The QAS officer informed me that he was ok and exited the locker room.
· Several minutes passed and I exited the locker room and went to triage to locate the QAS officer to double check that he was ok.
· After asking several QAS officers in the vicinity, I located the QAS officer's buddy and asked if his partner was ok. He informed me he is in the bathroom and then I informed him what had happened and he wasn't in the bathroom.
· We went back to the bathroom to see if the QAS officer may have returned there, but he was not there.
§ After this, I then returned to my duties.
Contemporaneous note of Ms Garrett
From: Susannah Garrett
Sent: Thursday, 2 June 2016 8.05 PM
To: Terence Dickson (Acting Operations Supervisor)
Cc: Paul Young (QAS Gold Coast)
Subject: 02/06 incidentTo whom it may concern,
I was on 7am-7pm shift out of Burleigh Heads Station today. We were at Robina Hospital this evening at approx. 1830 when I went to the staff bathroom towards the right of the emergency area. As I was waiting to use the toilet a GCHR Nurse came out of the toilet looking a little shocked and concerned and then asked me if I was Jay's partner, I said no, he didn't say anything else and left. When I went back to the triage area I overheard him asking Patrick (GPP) if Jay was his partner, he answered yes, the RN then explained that he just saw him come out of a toilet looking like he was going to pass out, with bloodshot eyes. Patrick and I both became concerned so we started looking for Jay throughout the emergency department and checking all the toilets. Patrick eventually found him, after a few minutes, in the toilets at the back of the emergency department (? Pt toilets). I was nearby and heard him knocking on the toilet door and asking Jay if he was alright, Patrick opened the door slightly as I came over and I saw Jay sitting on the toilet, leaning forward, elbows on knees, hands together holding a Penthrox/Methoxyflurane whistle. The room smelt strongly of methoxyflurane, I did not see him put the whistle to his mouth, he did appear heavily under the influence. Jay repeated to Patrick that he did not use it, he's just really stressed at the moment in regard to his daughter. Patrick and I stayed with him, talking with him and explaining that he needs to go home, Patrick said to me he will speak to Terence (OS) if I can take Jay outside for some fresh air. I understood that Terence was aware of the incident prior to leaving the Hospital.
I requested to Comms for the OS to call me on the way back to station to confirm he knew about the incident and to ensure the Officer had been taken off road immediately.
Please contact me if you have any further requests.
Susannah Garrett
ACP2 Burleigh Heads StationAs recorded above, Mr Terence Dickson, Acting Operations Supervisor - QAS, was made aware of the fact that Mr Costello had been found in a toilet cubicle with a methoxyflurane whistle in his hand by Mr Hoey. Mr Dickson's actions in response to that report are set out in his own contemporaneous note, prepared early the following morning.
Contemporaneous note of Mr Dickson
From: Terence Dickson
Sent: Friday, 3 June 2016 2:19 AM
To: Paul Young (QAS Gold Cost)
Subject: Incident 7663655This report are (sic) the events in brief of what occurred at Gold Coast Robina Hospital A&E dept. on 2/6/2016 regarding ACP11 Jay Costello whilst on incident 7663655:
· I arrived at Robina A/E at approximately 1905 hrs with 607573.
· Entered A/E to ascertain the MEDAI situation.
· Searched for various crews to confirm POST whilst performing this function Patrick Hoey approached me looking visibly distressed and urgently needed to talk to me privately.
· Approximately 1910 hrs we moved to a secluded area to disclose that he had witnessed his crew mate in a toilet with a Penthrox Whistle in his hand and that his crew mate seemed to had (sic) bloodshot eyes and slurring his words.
· I immediately called Communications Centre to place Ambulance 6501 Out of Service until this event could be confirmed due to safety reasons, confidentiality was kept throughout this process.
· I then called SOS (Senior Operations Supervisor) Young and explained that I did not have all facts but the matter was deemed serious and needed further investigation
· I then located the Officer Jay Costello and Patrick Hoey and used the privacy of the write up room to confirm the event
· Officer Costello disclosed that he was under a lot of stress as he had received bad news yesterday about his child's medical condition.
· I offered support through Priority One which he refused.
· I then questioned him about the report from Patrick Hoey that he had been discovered in a toilet with a Methoxyflurane whistle in his hand with cord around wrist.
· Officer Jay Costello denied that he had used the whistle and he explained he had found this whistle in his pocket whilst having a moment on toilet trying to de-stress over his child's news.
· Officer Costello informed me that he had had a "vaso vagal attack on standing" from the toilet.
· Whilst interviewing Officer Jay Costello I noticed he seemed vague, slurred his speech, bloodshot eyes, unsteady gait and very defensive over the use of drugs, when I maintained I was concerned about his welfare over his stress due to his child's condition primarily and the fact he was unable to effectively operate as a clinician due to his emotional state and I had not accused him of misappropriating any drug.
· Jay Costello had a distinct smell of Methoxyflurane around him and on his breath whilst interviewing him.
· I then received a page to contact Ambulance 6536 urgently, I excused myself from Jay. Patrick informed me he would stay (sic) Jay to keep him company and to assure his welfare.
· Upon calling 6536 it was reported by Susan Garrett that she too had witnessed Jay Costello on the toilet with his uniform pants up, toilet seat down, elbows on knees with his hands together and a Methoxyflurane whistle in his hands.
· Susan Garrett further reported that there was a very strong smell of Methoxyflurane in the toilet area and Jay was red eyed and slurring his words.
· I instructed Susan Garrett to keep this information confidential and to report these events into an email and send to me as soon as possible.
· Upon tracking the course of events I realised there had been a RN witness who originally found Jay in the staff toilets, I located this RN and confidentially and informally interviewed the RN, Troy, of the course of events and then realised where Jay had been located by Susan and Patrick was a different toilet area to where the RN had originally found Jay.
· At approximately 1932 hrs due to the suspicious nature of the change of toilet locations and the reports of three individuals, one non QAS but QHealth, what they had witnessed Officer Jay Costello doing in the toilet at Gold Coast Robina Hospital, I called SOS Young to confirm that there had been a possible Misappropriation of schedule drug/s and I was also very concerned over the welfare of the Officer who had now become very emotional.
· I confidentially consulted with CNC Brett at Robina, as one of his staff members had been a possible witness to a possible misappropriation of a class drug and needed this staff member to give a statement of what he had witnessed and Brett was in agreement and offered the CCTV footage of both toilet areas and would release this on receiving an email from a senior ranked officer e.g. EMO. This information was passed on to SOS Young. I stressed the urgency and the confidentiality of this matter to Brett whom was in agreement.
· In consultation with SOS Young I was instructed to audit 6501 drug kit to ascertain the correct amount of drugs were present and found 2xMorphine and 2xMethoxyflurane were missing but accounted for by patient administration according to Patrick Hoey and eARF.
· At approximately 2035 hrs I was then instructed to transport Jay Costello to Mudgeeraba station with 607573, for SOS Young to consult with officer.
· On arrival I was instructed by SOS Young to transport Jay Costello back to Robina A/E for medical assessment, which I did and on arrival I handed the welfare of Jay over to SOS Young and left for Southport to catch up with Patrick Hoey who had been visibly distressed by the incident he had witnessed.
· On arrival at Southport station I instructed Patrick to report the events in an email to myself and SOS Young. I again instructed Patrick to keep this incident confidential and to use a computer in the room rather than general desk computer at Southport station.
· At this point I received a call from Rachel Latimer (Acting Superintendent - QAS) to talk to Patrick Hoey, thereafter I was instructed to have a general informal educational but nil specific conversation with the observer student to ascertain if there was (sic) any issues with the patient treatment she could perhaps give witness to.
· Student Observer Erin Wacker spoke openly about the patient treatment and all seemed in order except after she disclosed that she was very concerned about the emotional wellbeing of officer Costello due to the bad news he had received recently, but he had acted oddly towards the end of the transport of the patient (incident 7663655) as he had been holding the whistle for the patient as the patient had ?# of shoulder, Patrick was attempting to cannulate patient so Jay had held the Methoxyflurane whistle in patient's mouth whilst the patient was cannulated and Morphine administration took place. Jay then took possession of the whistle and he sat behind the patient and was out of sight behind the semi recumbent patient in transit. On arrival at the Hospital the student reports that Jay was red eyed and was acting strangely but did not find this abnormal as she assumed he had been crying due to the news he had received recently.
· Erin Wacker did not give any indication she suspected Jay of any misconduct and neither was this discussed with her. Erin showed nil inclination that there was any issue other than the emotional welfare of Officer Costello.
· I then proceeded to audit both accessible drug safes at Southport Station and found nil apparent discrepancies and reported this immediately to SOS Young, witnessed by Patrick Hoey.
· I engaged in informal counselling with Patrick Hoey, as he had been visibly distressed earlier when he reported this incident to myself and wanted to reassure him that he had acted as he should have and after he assured me his welfare was in order he terminated his shift at approximately 0000 hrs.
· Comms informed of Patrick Hoey shift extension and I confirmed the Toughbook had been synchronised as per SOS Young instructions.
· At approximately 0010 hrs 607573 returned to Southport where this report was generated.
The above is the course of events reported to the best of my recollection and knowledge at the time of this report been (sic) generated on the 3/6/2016 from Southport Operations Office.
…Regards
Terence Dickson
Acting Operations SupervisorSuspension
After returning to Robina Hospital, (see ninth from last dot point immediately above), Mr Dickson handed over the care of Mr Costello to Mr Young. He, in turn, arranged for Mr Costello to be admitted to the Hospital overnight for observation and assessment.
On Friday 3 June 2016, Mr Emery was briefed about the events of the previous evening by Mr John Hammond, Assistant Commissioner, Gold Coast LASN. On the basis there appeared to be enough preliminary evidence to suggest Mr Costello may be liable to disciplinary action, Mr Emery took the decision that it was appropriate to suspend him while further information was gathered about the whole matter.
To that end, Mr Emery arranged for correspondence to be prepared to Mr Costello, which was hand delivered that same day, advising him of his suspension (with pay) in accordance with s 18M of the Ambulance Service Act 1991 (the Ambulance Act). Mr Costello was also informed that Mr Hammond had been delegated to arrange for a formal investigation to be undertaken in connection with the events of the previous evening and that he would be contacted by the appointed investigator in due course.
Formal Investigation
On 6 June 2016, Mr Patrick Berry, an Inspector and Senior Operations Supervisor, Gold Coast LASN, was appointed by Mr Hammond as the investigator in relation to the incident. The Terms of Reference of the investigation were as follows:
· Review the contemporaneous reports prepared by Officer Patrick Hoey and Officer Susannah Garrett who were present at the Hospital at the time of the alleged incident;
· Interview any available witnesses including Nurse Troy Bakens and University Student Ms Erin Wacker;
· Interview any other identified witnesses, if required;
· Secure copies of any CCTV footage available from the Gold Coast Hospital. If footage is available and relevant, then this material should be included in the determinations for this matter, including providing the subject officer with an opportunity to view;
· Interview the subject officer and seek his response regarding the information gathered in relation to this matter;
· Ascertain facts in relation to the matter;
oExamination of the allegation;
oConsider all pertinent evidence;
oAnalysis of evidence in accordance with all relevant laws, the Code of Conduct for the Queensland Public Service, QAS policies & procedures; and
oAny other relevant issues and circumstances relevant to this case;
· Make available applicable supporting documents;
· Outline any discrepancies and/or breaches of relevant QAS Policies and Procedures; and
· Outline discrepancies and/or breaches of relevant laws and the Queensland Public Service Code of Conduct.
Should any new or changed information or alleged employee misconduct be identified, that falls outside this Terms of Reference, the investigator should contact Ms Kerrie Pereira, Principal Advisor, Employee Relations on 3635 3089 immediately to facilitate a change/reassessment and/or extension to the Terms of Reference.
Any systemic issues that are identified during the course of the investigation should be clearly detailed in the Investigation Report for consideration by the decision maker.
Interviews with witnesses
In the course of his investigation, Mr Berry interviewed the following persons on the dates shown, with each interview recorded and transcribed:
· 14 June 2016 - Mr Dickson;
· 20 June 2016 - Mr Hoey
· 23 June 2016 - Ms Garrett
· 25 June 2016 - Mr Young
· 28 June 2016 - Ms Wacker.
Mr Dickson's interview
In the course of his interview, Mr Dickson provided additional information, as well as some clarification, in relation to matters recorded in his contemporaneous note (above);
· when he was speaking to Mr Costello in the write up room the latter was slurring his words, his eyes were bloodshot and "he looked a very broken person";
· he (Dickson) put that down to the news Mr Costello had received about his daughter's medical condition;
· when talking about his daughter's medical condition Mr Costello was quite emotional and appeared to be very depressed;
· Mr Costello told him that he had disclosed to his crew mates that his child had been diagnosed with a serious medical condition and that he had also been emotional during the day in connection with the news he had received;
· during their initial discussion at Robina Hospital, Mr Costello seemed to be slurring his words. In the course of the trip to Mudgeeraba to see Mr Young, some of his words were still slurred, but not as pronounced as in the initial contact;
· when Mr Costello exited the vehicle at Mudgeeraba he seemed to be battling with his balance and held on to a fence to steady himself;
· as part of the explanation he gave to Mr Costello for taking him off the road, he told him (Costello) that he had blood shoot eyes, he had an impaired gait, he was slurring his words and he had a strong smell of methoxyflurane on him. Mr Costello responded by saying that he always had red eyes because of a medical condition and that the methoxyflurane smell was on him because he had put the Penthrox whistle in his pocket;
· when he asked Mr Costello why he had the methoxyflurane whistle in his hand when the door of the toilet was opened, Mr Costello responded by saying that he had "all of a sudden found it in his pocket and he had … taken it out to work out what was in his pocket when Patrick opened the door …";
· he took it upon himself to approach the RN (Mr Bakens) who had originally found Mr Costello;
· they walked to the toilets and Mr Bakens explained that when he found Mr Costello he was unsteady on his feet, slurring his words and there was a strong clinical smell present which wasn't normal for that toilet area; and
· when he spoke to Ms Wacker she mentioned that Mr Costello had been really emotional and she was concerned about his welfare.
Mr Hoey's interview
During his interview with Mr Berry, Mr Hoey said:
· he did not notice anything in particular about Mr Costello's demeanour during the shift. As far as he was concerned everything was normal;
· at one stage during the shift, maybe midway, Mr Costello mentioned that his daughter was under investigation for a disease which had the potential to impact her intellectual abilities later in life. "It was only mentioned once and nothing else was really said of it";
· while he was in the triage area, after Mr Costello had gone to the toilet, a nurse came up to him and asked if he was working with Jay;
· the nurse said he had just seen Jay come out of the bathroom and "he's sort of stumbled and had to catch himself against the wall";
· the nurse said that Jay told him that he had just had a vasovagal episode and he would be fine. However, the nurse said that he was concerned about Jay.
· he and a female officer, who overheard the conversation, went with the nurse to the toilets where Mr Costello was seen, but could not find him;
· after checking several other toilets he went to the end of a hall where there were two toilets. The one on the right was empty and the one on the left was locked;
· he knocked on the door but did not get any response. He waited a few seconds and unlocked that door from the outside;
· Mr Costello was sitting on the toilet with his elbows on his knees, facing down. He had a Penthrox methoxyflurane whistle in his hand. The room smelled as if someone had been using it, but he did not see Mr Costello use the whistle;
· it took Mr Costello a few seconds to realise he was standing at the door then he looked up and looked quite shocked. He asked Mr Costello what he was doing. Mr Costello responded by saying that he just needed a few minutes and he would be ok. He took the whistle off Mr Costello and closed the door;
· outside the toilet he spoke to the female officer, who had seen everything, about what they should do. She suggested that he talk to Mr Dickson, the Operations Supervisor;
· at that point Mr Costello came out of the toilet and asked what they were talking about;
· he asked the female officer to take Mr Costello outside to get some fresh air and free his head because he was not in the right space to be working. He also told Mr Costello that he should go home and he was not prepared to work with him for the rest of the night;
· after that he went and told Mr Dickson what he had seen;
· because he was a bit shaken up, he threw the Penthrox in the wrong bin by accident;
· when Mr Costello came out of the toilet "he looked sort of beaten, like he was exhausted. He was quite spacy, he didn't, he just didn't really strike me as normal. His eyes were quite bloodshot. It looked as if he had been crying or had been quite emotional. He was slow with his answers and a just bit confused in general". He was steady on his feet when he came out of the toilet; and
· while he was not really looking, he had not seen anything that sent any alarm bells off about Mr Costello's demeanour prior to going to the bathroom "Once I saw him in the bathroom, it was a different person".
Ms Garrett's interview
In her interview with Mr Berry, Ms Garrett told him:
· she had a few words with Mr Costello at the triage desk, because she knew him from Brisbane a few years ago, and found out that he had been transferred to the Gold Coast;
· he came across "as a normal general appearance", was "presenting as a coherent GCS15" and had just finished his handover to the triage nurse;
· after she was triaged she went to the toilets. As she was waiting to use them, a male nurse exited the toilets looking a little concerned or worried, and asked her if she was Jay's partner. When she replied that she was not the nurse walked off;
· after she left the bathroom and came back to the triage area she noticed the same male nurse talking to Mr Hoey. She heard the nurse say that he was concerned because he had seen Jay come out of the toilet, with bloodshot eyes, and looked like he was almost going to collapse. Mr Hoey and she then went to start to look for Mr Costello;
· after looking around the Emergency Department for a few minutes they went to the back of the Hospital to look further. She noticed Mr Hoey opening one of the toilet doors saying something to the effect "Hey Jay, what are you doing?";
· she walked towards the door and Mr Hoey pushed the door open a little bit. "Jay was sitting on the toilet leaning down, elbows on his knees, leaning forward looking quite worse for wear … he had a Penthrox whistle in his hand. He was either holding it or holding the string and Patrick was just saying 'what are you doing mate, what are you doing?'";
· Mr Costello denied that he'd had any of the methoxyflurane. "He repeatedly denied, denied, and seemed heavily under the influence at the time with his speech, slurred speech, repetition, bizarre behaviour … the room smelled very strongly of methoxyflurane. I didn't see him inhale the whistle, I only saw him holding it. Patrick took it off him …";
· she and Mr Hoey talked about what they should do about what they had seen. It was agreed that Mr Hoey would speak to Mr Dickson and she would take Mr Costello outside where the ambulance was parked while Mr Hoey went to speak to Mr Dickson; and
· whilst outside Mr Costello expressed concern about his daughter and showed her a type of rash he googled on his phone. He seemed quite obsessed just looking through the phone and mentioned that he had googled this a couple of days previously.
Mr Young's interview
Mr Young gave Mr Berry a detailed account of his recollections of the evening of 2 June 2016, including a number of telephone calls from Mr Dickson and his own contact with Ms Latimer. He also said:
· when he met Mr Costello at the Mudgeeraba station his general appearance was that he was unsteady on his feet and his speech was not fast reacting, "as if he was under the influence of something";
· in his professional opinion, Mr Costello did not seem to be under the influence of methoxyflurane. Given that he had been with Mr Dickson for quite a while, if he had taken methoxyflurane, it would have been out of his system by then; and
· in his opinion, Mr Costello was "carrying more than methoxyflurane on board".
Ms Wacker's interview
Ms Wacker provided the following information to Mr Berry during the course of her interview:
·she did not notice anything extraordinary about Mr Costello's appearance when they first commenced their shift at 1.00 pm, or at any other stage;
·while the other officers cannulated the patient in the ambulance she held the methoxyflurane for the patient to use because she could not hold it herself as her injured arm was in a sling;
·on the way to the Hospital she administered 2 x 2.5 ml of morphine to the patient;
·she did not know what happened to the methoxyflurane whistle after the first dose of morphine was administered;
·while she and Mr Costello were dealing with the paperwork and waiting to be triaged at the Hospital they were talking normally and he was giving her pointers about the paperwork. In terms of his general appearance, he appeared "normal";
·while standing at the triage desk after Mr Costello went to the toilet, she witnessed a male registered nurse yelling out for Jay Costello;
·after Mr Hoey identified himself as Jay's partner, the nurse told Mr Hoey about what he had witnessed in the bathroom. He and another paramedic walked off with the registered nurse to find Mr Costello;
·five or ten minutes later they came back and Mr Costello looked really sad;
·a couple of hours after all this happened, during which time she sat in the ambulance, she witnessed Mr Costello on the phone talking to someone. He wasn't talking quickly, it wasn't slurred, he was just having a normal conversation with someone;
·she met Mr Costello on her first day of placement during which time he spoke to her about his brother-in-law - whom she knew from ACU - and showed her where his brother-in-law had practiced cannulating him the day before; and
·during the shift Mr Costello mentioned to Mr Hoey that he had taken annual leave the day before and his daughter might have a disability. However, he was positive about it, saying "but she's developing really well …".
The Audit
In addition to interviewing the persons mentioned in paragraph [16], Mr Berry conducted an audit and review of Mr Costello's drug administration records and patient records over the previous six months, with an indepth analysis of his electronic Ambulance Report Forms (eARF) records for the months of February, March and May 2016. The audit identified a number of issues of concern to Mr Berry, as follows:
· Mr Costello was the highest user of morphine in the State - administering 84 doses in excess of any other officer, including other Advanced Care Paramedics and Critical Care Paramedics;
· "an inordinate number" of eARF's completed by Officer Costello were not compliant with the QAS Drug Management Code of Practice;
· there were 58 occasions where discards of S 8 drugs (morphine and fentanyl) had not been recorded, with a number of these not being witnessed - as required by the Code of Practice; and
· although only located at Beenleigh Station for just over four months (January to 9 May 2016) in the six month period January to June 2016, before moving to Southport, Mr Costello's discard rate (66 occasions) for S 8 drugs was 37 more than the next highest officer at that station over the full six month period.
Interview with Mr Costello
By letter dated 1 August 2016, Mr Hammond directed Mr Costello to attend an interview with Mr Berry, as the appointed investigator, at the Pimpama Ambulance Station on 4 August 2016 and to bring a support person if he so wished. The letter informed Mr Costello that the interview would provide him with an opportunity to respond to the following allegations:
Allegation 1
It is alleged that on 2 June 2016 whilst on duty you misappropriated methoxyflurane.
Allegation 2
It is alleged that on 2 June 2016 you self-medicated with methoxyflurane whilst on duty. Specifically it is alleged that you concealed the misappropriated methoxyflurane on your person and proceeded into a toilet cubicle at the Robina Hospital. You were subsequently observed by colleagues with the methoxyflurane whistle strapped around your wrist whilst sitting on a closed toilet.
Allegation 3
It is alleged that you have not documented your opioid discards according to the Drug Management Code of Practice. Specifically, it was noted in the majority of cases audited, you have not completed the electronical Ambulance Report Form (eARF) appropriately - there is no record of discard volume and documented witness of discard.
The letter also informed Mr Costello that he would be required to provide the investigator with an explanation as to the presence of two puncture wounds in his cubital fossa on his arm which had been noted by Hospital staff at Robina Hospital during his overnight admission on 2/3 June 2016.
Although he conducted the other interviews by himself, Mr Berry attended his interview with Mr Costello in the company of Ms Karel Malcolm, Executive Officer, Clinical Quality Patient Safety Unit and Ms Natalie Schute, Senior QAS Pharmacist. Accompanying Mr Costello was Ms Efthimia Voulcaris from Devaney Investigations and Industrial Consulting. The interview, which was recorded and transcribed, went from 11.20 am until 1.29 pm, with a break between 12.16 pm and 12.50 pm to allow Mr Costello and his support person to view CCTV footage of the triage area on the evening of 2 June 2016.
During the course of the interview, Mr Costello made the following comments:
· if a proper medical assessment had been undertaken during his Hospital admission, his innocence would have been established long ago;
· prior to leaving the 86 year old patient's residence a second dose of methoxyflurane was drawn up because he and the student were having difficulty cannulating the patient and she needed pain relief;
· after the canular was inserted by Mr Hoey, the student administered morphine on the way to the Hospital;
· the patient held on to the whistle all the way to the Hospital but dropped it, between the stretcher and the wall of the vehicle, just before they arrived at the Hospital;
· as he exited the vehicle he grabbed the whistle and put it into his right trouser pocket (paragraph 38 of transcript) for the patient to use if she needed it again (paragraph 548-549);
· after being ramped in the triage area for some time he went to the staff toilet. While in the toilet area he had his mind on his daughter and some spots on her body that were confirmed to be "café au lait spots" by the family's general practitioner the previous day;
· just prior to standing to leave the toilet cubicle he looked up images on his mobile phone to establish the possible outcomes of her condition. The images he viewed "weren't pretty". He had an overwhelming feeling of, what he could only put down to, shock;
· he received a massive fright that lasted for a long time and it took his legs away from him because the cubicle was small and he wanted to get out of there as he was feeling claustrophobic;
· he now knew that it was more likely than not that he had suffered a panic attack;
· a nurse came up to him and asked him if he was alright. He responded by putting on a brave face, saying that he was "just really stressed about my daughter" and "I just need to breathe it out";
· he started to go back to the triage area but could not bear to face anyone because he felt like he was going to cry. He headed to the back of the Hospital where he knew there were other toilets where he could sit down and "have a time out and just try and get myself together before going back and having to, you know, see any of my colleagues";
· the toilet area he entered had a wash basin in the corner, a shower (with a metal surround for a curtain to be drawn around) and a toilet. "It's probably about as big as this (interview) room … so there's quite a bit of space in there";
· when he sat down in the new toilet area he still felt claustrophobic. The Penthrox whistle was in his pocket and poking into his leg. "I just had to get it out". He pulled it out and held it in his right hand while taking big breaths;
· the door of the toilet opened and Mr Hoey walked in and asked "What's going on mate?". He responded by saying that he was really stressed out about his daughter;
· when Mr Hoey asked him about the whistle in his hand he assured him that he had not used it and handed it over when Mr Hoey asked him to;
· the puncture marks in his arm were the result of allowing his wife's younger brother, a paramedic student at ACU, to practice cannulation a day or so earlier prior to going on prac at Coolangatta Station;
· his comparatively high use of morphine could be explained by the fact that he always tried to help relieve his patients' pain, rather than to leave them wait until they were transported to Hospital;
· if a patient was sitting with a methoxyflurane whistle you could smell it. If they used it properly there is a stronger odour than if they were just holding it, but not as strong as if they blew through the whistle; and
· other paramedics would have similar observations concerning the smell of methoxyflurane when it was in use compared to when it was not in use.
Mr Costello made a number of additional comments to Mr Berry, as follows:
· he believed he did not lock the second toilet when he entered it;
· the Penthrox whistle was in his hand but the whistle was not attached around his wrist. "At no stage was the whistle attached around my wrist";
· after he realised the Penthrox whistle was still in his pocket, while he was sitting on the seat, it was his intention to go back and show his partner and the student that he was discarding it;
· "At no stage did I inhale the said whistle";
· the CCTV footage did show some change in his behaviour after he came back from the toilets because he was upset. However, he was not unsteady on his feet. While he did put his hands on his head that was because he was upset about the deformities that his 8 month old child could have;
· his state of mind on the day could be exemplified by the fact that he spoke to the Acting OIC prior to starting work about the upsetting news he and his wife had been given by their GP the previous day, as well as the fact that he spoke to Mr Hoey about the same matter at the start of their shift; and
· he was particularly distressed after seeing the photos of his daughter's medical condition on his phone. However, it was not only that, it was also the learning difficulties associated with the medical condition.
Investigation Report
On or about 15 August 2016, Mr Berry finalised his Investigation Report - with the assistance of Ms Kerrie Pereira, Principal Advisor, Industrial Relations, QAS - and provided it to Mr Hammond. The report indicated that if the decision maker accepted the evidence and reasoning outlined within it then, on the balance of probabilities, each of the allegations was capable of substantiation. In particular, Mr Berry recorded the following conclusions in respect of the allegations:
Allegation 1
Officer Costello has admitted that he placed the methoxyflurane inhaler in his cargo pants pocket of his uniform. He did not discard the methoxyflurane inhaler in line with the QAS Drug Management Code of Practice. Officer Costello had opportunity to ensure that the contaminated inhaler was appropriately discarded which was also supported by CCTV footage.
Based on the balance of probabilities, the investigator has determined that it is more likely than not that Officer Costello concealed possession of the methoxyflurane inhaler. Based on all the information available, the student's recollection of events is preferred over Officer Costello's version. Based on this information this allegation is capable of substantiation.
Allegation 2
Based on all the evidence available, the investigator did not find Officer Costello's version of events probable. In all the circumstances, it is the opinion of the investigator that Officer Costello's version lacks credibility in comparison to ACP Hoey's and ACP Garrett's version of events.
The evidence of the two paramedics and a Registered Nurse all indicate Officer Costello presented in an altered state only after having excused himself to go to the toilet. Given their clinical expertise, their evidence regarding their observations as to Officer Costello's presentation provides the decision maker with strong evidence that it is more likely than not that Officer Costello self-administered methoxyflurane whilst on duty on 2 June 2016. Therefore, based on the balance of probabilities, this allegation is capable of substantiation.
Allegation 3
Officer Costello's high S 8 drug administration and discard rates are of a concern, particularly in light of Officer Costello's failure to comply with his responsibilities as an Advanced Care Paramedic.
The management of S 8 drugs by paramedics is a critical aspect of the role and is governed by the legislation.
If the decision maker accepts the evidence and reasoning outlined within this report then, on the balance of probabilities, the allegation that Officer Costello failed to document his opioid discards according to the Drug Management Code of Practice is capable of substantiation. Specifically, it is noted in the majority of cases audited, Officer Costello has not completed the eARF appropriately, as there is no record of documented discard and witness.
First Show Cause Letter
After reading and considering the Investigation Report and Attachments, Mr Hammond was reasonably satisfied that disciplinary action should be initiated against Mr Costello in relation to the three allegations. In making that decision, he indicated that he did not see anything in the report to indicate or raise a suspicion that the procedure undertaken by Mr Berry in investigating the allegations was not fair or transparent.
Having reached his decision, Mr Hammond wrote to Mr Costello on 22 August 2016 inviting him to show cause as to why disciplinary action should not be taken against him in relation to the three allegations regarding his conduct. Mr Costello was provided with 14 days, from the date of the letter, to provide a response.
To assist him to respond, Mr Costello was provided with a copy of Mr Berry's report - which included the text of the contemporaneous notes prepared by Mr Bakens, Mr Hoey and Ms Garrett - and transcripts of the interviews with the persons mentioned in paragraph [16], above. Copies of the Drug Management Code of Practice and a role description of an ACP were also attached.
Mr Costello's response
On 29 August 2016 Mr Costello provided a detailed 10 page response to Mr Hammond. In the early paragraphs of his letter, Mr Costello drew Mr Hammond's attention to the fact the Show Cause letter informed him that the allegations against him were "serious" in nature which he took to mean that, if substantiated, the consequences may be serious and irreversible to his employment and career. As such he submitted that the degree of satisfaction required in determining whether the allegations are substantiated requires that the Bringinshaw v Briginshaw standard of proof is adopted. He also referred Mr Hammond to the case of Dutt v Central Coast Area Health Service [2002] NSWADT 133 where it was held that an investigator, and decision maker, must look at the nature of each allegation and, if it would be reasonably foreseeable that there may be adverse consequences for the livelihood or reputation of the subject officer, then the application of the Briginshaw test is required.
Mr Costello also noted while the report referred to "on the balance of probabilities" and "it was more likely than not", the investigator had made no reference in his report as to the application of the Briginshaw test. Mr Costello also submitted that the evidence referred to in the report was insufficient to meet the standard of proof required to establish any of the allegations against him.
An analysis of the evidence relating to each of the allegations was then provided, which is summarised below:
Allegation 1
· he was authorised to possess methoxyflurane whilst on duty under the Health (Drugs and Poisons) Regulation 1996 and by QAS, as defined in the Drug Therapy Protocol and by his authority to practice;
· the practice of carrying drugs, which have been partially used, in the pockets of the QAS uniform is one which is widely adopted by Paramedics. There is no QAS policy which prohibits that practice. The investigator failed to make enquiries about this practice, which is adopted by other paramedics for convenience. Permission was requested to contact other QAS paramedics, to obtain supporting statements about this practice, prior to a final decision being made in relation to the allegation;
· the dictionary definition of "misappropriating" is to take something dishonestly for one's own use. "I did not use the methoxyflurane, and none of the witnesses stated they saw me use it";
· "I would have discarded the methoxyflurane had I remembered it was in my pocket. However, I had forgotten that it was in my pocket. On 2 June 2016 I was distressed, anxious, stressed, panicking about a serious diagnosis relating to my daughter which I had only received the day before";
· as stated in the interview, his distress was raised with his OIC prior to the shift. However, the Investigator failed to interview the OIC to confirm that this conversation occurred;
· "One of the common and (medically accepted) symptoms of anxiety includes issues in relation to memory loss and a general ability to remember things. I forgot that the methoxyflurane was in my pocket when I went to the bathroom and I attribute my forgetfulness on that day to the anxiety and stress that I was suffering";
· page 23 of the QAS Drug Code of Practice refers to what an Officer should do if they find themselves accidentally in possession of drugs after they complete their shift. The fact that this is contemplated, even after a shift is finished, is "evidence" that it can occur while on shift;
· the investigator's analysis of the evidence states that there are conflicting recollections concerning the cessation of the patient's use of methoxyflurane. It was not open to the investigator to prefer another person's uncorroborated recollection of events over his own recollection of events, particularly in light of the seriousness of the allegation. The basis upon which the investigator attempted to justify his decision was that the other person's version is "more consistent with paramedic practice". However, the investigator did not outline what the "paramedic practice" actually is;
· the uncorroborated evidence of the student paramedic makes no mention of who removed the methoxyflurane from the patient or where it was secured. These are obvious and important factual questions which were not explored by the investigator. The evidence relating to this factual issue is directly relevant to his evidence about why the methoxyflurane was in his pocket;
· the investigator did not appear to have re-interviewed Ms Wacker to ask her about his explanation that the methoxyflurane fell between the stretcher and the wall of the vehicle. In light of the fact that there is no evidence from Ms Wacker about this point, there is nothing to contradict his account;
· "Procedural fairness is an integral element of a professional investigation, and a failure to put to a witness whether it is possible that my recollection of events occurred creates a miscarriage of procedural fairness"; and
· the allegation does not provide particularity as to how the methoxyflurane was misappropriated. As such, the responses provided above were his best guess as to what the allegations were in relation to.
Allegation 2
· as previously stated on 2 June 2016 and in the interview with Mr Berry, "I did not use methoxyflurane and there are no witnesses who can say that they saw me use it. There is no direct evidence to contradict my explicit and direct evidence. The investigator relies upon circumstantial evidence which does not meet the standard of proof and the allegation is not capable of substantiation, particularly in light of the seriousness of the allegation";
· the QAS Drug and Management Code of Practice requires that in suspected cases of misappropriation, all relevant items are to be retained and submitted for analysis. "If the Code of Practice had been followed, an analysis would have revealed that my saliva was not on the methoxyflurane inhaler";
· after being admitted to Hospital on the evening of 2 June 2016 he gave permission for QAS to access his medical records because he had nothing to hide. If he knew he was under suspicion he would have requested an appropriate drug test to be undertaken. At no time has QAS arranged for an appropriate medical assessment;
· as stated in the interview, "I did not have the methoxyflurane around my wrist and in this respect there is an inconsistency in the evidence of Officers Hoey and Garrett", respectively. Officer Garrett (in her written statement and her interview) supports his evidence that he did not have the strap around his wrist and that he was holding it. It is not open to the investigator to determine that the allegation (as framed in the Show Cause Letter) was capable of substantiation, because the evidence of Officer Garrett and myself is to the effect that the whistle was not strapped around my wrist;
· the investigator seems to have heavily weighted the witness observations regarding the odour of methoxyflurane in the toilet area. An inhaler has an odour for a period after it has been used by a patient. The strength of the odour and the length of time that the odour remains depends on the size of the space (the smaller the space, the stronger odour, for example: in an Ambulance vehicle or confined space like a toilet) and other subjective factors such as ventilation of the area and the witnesses' olfaction. It is not unusual that the methoxyflurane inhaler would have had an odour as it had very recently been used by the patient;
· "The witnesses' observations are circumstantial, subjective in nature and cannot be measured";
· all of the observations of the witnesses are consistent with the side effects of the panic attack which he suffered while in the emergency department and are attributable to the stress which he was under in relation to his daughter's diagnosis. The observation of Nurse Bakens, as relayed to Officer Hoey, is consistent with how he felt after the onset of the panic attack and anxiety episode;
· the investigator failed to mention, consider, or include in his analysis of the evidence that he might have had a panic attack and how the physical side effects of such a panic attack might have impacted on his presentation on 2 June 2016. The exclusion of his evidence in this regard demonstrated bias on the part of the Investigator;
· "I excused myself to go to the toilet because I had become overwhelmed by anxiety and the panic attack. That is important factual evidence. In those circumstances it would be normal for there to be some changes in my presentation immediately after a panic attack.";
· it did not appear that the Investigator re‑interviewed the witnesses to ask them whether his physical presentation could have been the result of a panic attack;
· "Of the three witnesses, only one of them, Officer Garrett, stated that they believed the changes in my presentation was, in their opinion, as a result of my being 'under the influence'"; and
· the evidence is insufficient to meet the standard of proof required to substantiate the allegation against him in light of the seriousness of the allegation.
Allegation 3
· Mr Costello acknowledged that his paperwork can at times be inefficient but noted that the use of the words "in the majority of cases" did not provide particularity about how many of the eARFs were inappropriately completed;
· while he had been informally spoken to by his OIC about improving his paperwork, he had not been directed to undergo any formal performance improvement plan or to receive further training;
· he had not seen the results of the audit of his administration of morphine or fentanyl and would need to see the evidence which supported the assumptions made in the Investigation Report so that he could respond;
· the ADAPT is defined in the Drug Management Code of Practice as "an online electronic program to provide real-time monitoring, reporting and notification of issues relating to drug management for onroad officers and managers". If that was the case, he did not understand how the real-time monitoring did not raise any issues in relation to drug discards prior to the audit and subsequent allegations against him;
· while he understood the management of S 8 drugs was important, and that his discard documentation required improvement, he had no doubt that with additional training and performance management his paperwork would exceed QAS's expectations;
· he would be able to better respond to his eARF records once he received further and better particulars and reviewed the eARFs; and
· because of the system being constantly upgraded or fixed, it was possible that certain data generated through the CAD/eARF's system for the purposes of the present matter was inaccurate. It was also possible that certain data traffic was corrupted during the synchronisation of each toughbook.
Findings and Proposed Penalty
On 22 September 2016 after carefully considering all the material before him, including the detailed response from Mr Costello, Mr Hammond wrote to Mr Costello to advise him that he had found, on the balance of probabilities, that each of the allegations against him was substantiated. In so doing, Mr Hammond set out his reasons for reaching his ultimate conclusion that Mr Costello may be liable for disciple on the ground of misconduct.
After outlining his reasons, Mr Hammond informed Mr Costello that he was giving serious consideration to recommending to the delegate (Mr Emery) the penalty of termination of employment. He also advised Mr Costello that, in accordance with the principles of natural justice, no final determination of the disciplinary action had been made, or would be made, until he had the opportunity to respond. In that respect Mr Costello was invited to show cause, within seven days, why the proposed disciplinary action should not be imposed. He was also invited to provide an alternative outcome if he considered the proposed disciplinary action was inappropriate.
Mr Costello's response to proposed penalty
By way of correspondence dated 6 October 2016, Mr Costello responded to Mr Hammond. In the course of doing so he challenged a number of the reasons advanced by Mr Hammond as to why he found that each of the allegations had been substantiated, as follows:
· while he might have breached the clinical standards of hygiene in putting the methoxyflurane inhaler in his pocket, that was not a proper basis for not believing his version of events. He had never been dishonest in the course of his employment and there was no reason the breach could be relied upon to disprove his version of events;
· it appeared that the decision was based entirely on opinion, without any evidence which contradicted his own version of events;
· he had been honest in providing evidence and explanations and there was no reason why his explanations should not be considered to be credible;
· the CCTV footage did not show a change in his demeanour, other than him being upset. It did not show signs of him being unsteady on his feet;
· Mr Hammond failed to consider that he might have had a panic attack and how the physical side effects of such attack might impact his presentation;
· neither Officer Hoey, Officer Garrett nor the nurse had been asked whether his presentation could have been attributed to a panic attack;
· "all of the witness observations regarding my presentation were consistent with the presentation of having a panic attack and crying";
· he had not been provided with any documents regarding the audit, which he had requested a copy of. "It is procedurally unfair to rely upon evidence which I am not provided a copy of …"; and
· while it was possible that his eARFs were not properly completed, his discards were always recorded in the red drug book at the station and signed off by a partner or other qualified paramedic.
In responding to the proposed penalty of termination of employment, Mr Costello told Mr Hammond:
· while he continued to deny the findings of fact made against him, he noted that Mr Hammond had made his decision concerning his (Costello's) alleged use of methoxyflurane;
· as such, consideration should have been given to referring him for drug rehabilitation in accordance with QAS's Drug Management Code of Practice;
· if Mr Hammond genuinely believed that he self-medicated methoxyflurane, then the termination of his employment, as opposed to rehabilitation back into the workforce, would be harsh, unjust and unreasonable;
· termination of employment is the most severe penalty under s 188(1) of the Ambulance Act, and an outcome which is excessive and disproportionate to his conduct for several reasons:
oindustrial tribunals have frequently reinstated employees who have not been given a fair opportunity to improve their performance or conduct. While he had been informally spoken to about his paperwork, he had not received any formal training or been directed to enter into a performance improvement program;
o"The disciplinary sanction of termination of employment is typically reserved for the most serious cases of misconduct, such as where there have been deliberate departures from accepted standards of conduct or serious conduct that demonstrates an employee's unwillingness to be bound by the terms of their contract. I have not deliberately or intentionally been inefficient with my paperwork. I accept that I need to improve my paperwork but I have not deliberately failed to perform to the standard expected (by) QAS"; and
oQAS had not acted in accordance with the Public Service Commission Discipline Guideline which highlights that early intervention by managers to address employee performance is preferred over disciplinary processes.
[138]The third point to be made is that Mr Hammond was the "middleman" (as I have described him above), with Mr Emery being the actual decision maker. The final point is that the full transcript of Mr Berry's interview with Mr Young was included in the material considered by Mr Emery – as was everything which Mr Costello had had to say about the whole matter.Given that Mr Costello did not raise the matter of Mr Young's comments, or anything which should be made of them, one would have to question why Mr Emery would need to turn his attention to that matter. Mr Emery thought, given his prior experience with methoxyflurane, that the critical evidence about whether Mr Costello had used methoxyflurane essentially rested with Mr Hoey and Ms Garrett – which was why he decided to speak to them himself about what they had seen and smelled.
[139]In terms of the submission about the investigator and decision makers' failure to consider that Ms Wacker told Mr Berry that Mr Costello was acting "normally" when he was speaking on the phone after the incident, it appears that this was several hours after he was found in the second toilet. Although Mr Berry did not mention this point in his report, Ms Wacker's "evidence" about this point was included in the transcript of her interview which was read by Mr Emery. Further, Mr Costello did not highlight it as an issue in either of his responses to Mr Hammond. In any event, given Mr Emery's knowledge of the side effects of methoxyflurane use, and how long they would usually last, I do not believe his alleged failure to consider this point, in the whole scheme of things, to be particularly important.
Although it would obviously have been much better if Mr Berry had included Mr Dickson's contemporaneous note in his report – in which Ms Wacker's account of Mr Costello's presentation when they arrived at the hospital was recorded – I also do not think its omission had any effect on the merits of the ultimate decision reached by Mr Emery. As he said during his evidence, Ms Wacker's account of Mr Costello's behaviour was significantly different to that described by Mr Hoey and Ms Garrett after they found him in the second toilet.
[141]In addition, although Mr Emery did not make this point during his evidence, no one (including Ms Wacker) remotely suggested that Mr Costello was acting other than normally in his conversations with them in the triage area (i.e. Mr Hoey, Ms Wacker and Ms Garrett). Indeed, Ms Wacker said that he was helping her complete the paperwork and smiling at her. It was only after he was seen exiting the first toilets by Mr Bakens, and then observed and spoken to by Mr Hoey and Ms Garrett in, and after he left, the second toilet, that anyone raised concerns about Mr Costello's demeanour and behaviour.
Wrongly taking irrelevant matters into account (see paragraph 7.16 in Mr Costello’s submissions, quoted in paragraph [92] above)
[142]With respect to the authors, there is no evidence to support the submission that what are described as "irrelevant matters" were taken into account by Mr Emery when he made the decision to terminate Mr Costello's employment. The points raised in the submission are, to put it bluntly, simple conjecture presented as if they were fact.
[143]The first three matters raised in the submission relate to the factual background to the matter and provide the context against which Mr Berry concluded that the first and second allegations were capable of substantiation. However, as noted above, he was not the ultimate decision maker. The actual decision maker, Mr Emery, took the view, after reading all of the material, that the question he had to decide was "did Mr Costello use the methoxyflurane inhaler, or not?". That was why he decided to interview Mr Hoey and Ms Garrett. In that respect, it mattered little whether Mr Costello put the inhaler in his pocket contrary to proper clinical practice, whether his use of methoxyflurane and morphine in conjunction was an anomaly, or whether he had sufficient time to discard the inhaler. The evidence before Mr Emery was simply that Mr Costello had the methoxyflurane inhaler in his possession when he was found in the second toilet.
[144]Similarly, there is nothing to support the claim that the investigator and decision makers were influenced by their "concern" about Mr Costello's high administration and discard rates. In particular, there was no allegation put to Mr Costello which required him to explain his high administration and discard rates. As Mr Emery repeatedly said under cross-examination: the only allegation Mr Costello was asked to respond to, and the only matter he (Emery) considered, related to his (Costello's) failure to properly document his administration and discards in the eARF records. As Mr Emery said, any concern that QAS might have had about Mr Costello's high usage and discard rates would have been dealt with by Mr Hammond, or other managers, and not found its way to him.
Evidence which was lost or not secured by the investigator (see paragraph 7.18 of Mr Costello’s submissions, quoted in paragraph [92] above)
[145]While it obviously would have been better if the Penthrox inhaler had not been discarded into an ordinary waste bin by Mr Hoey, and not lost after it was retrieved several hours later by Mr Young and handed to Ms Lattimore at some later date, events did not unfold that way. As such, both parties – and the Commission – are left to deal with the matter without the benefit of any evidence which a forensic examination might have revealed.
[146]Given this circumstance, and noting that the matter is to be determined on a balance of probabilities basis – under the Briginshaw standard – and not on a beyond reasonable doubt basis, I shall simply take this point into account in my ultimate consideration of the various matters raised by Mr Costello in support of his argument that his termination, in all of the circumstances, was harsh, unjust or unreasonable.
[147]Notwithstanding that each of Dr Robertson and Prof Ogden (in one part of his evidence) opined that it would be "possible" for a person to have a blood test to establish whether methoxyflurane was present, that evidence was subjective and highly qualified. In that respect, Dr Robertson's evidence was more to the effect that such testing was theoretically possible, as opposed to being readily available. Similarly, Prof Ogden's evidence, considered in total – rather than via a single sentence – left me with the impression that while it should be possible to test for methoxyflurane, it would ultimately depend upon the sensitivity of the test as well as the time at which it might be conducted in relation to the consumption of methoxyflurane.
[148]Importantly, from my point of view, neither witness could state with any certainty that such test was available at the time of the hearing, let alone whether it would have been available on 2 June 2016. One would have thought that having for-knowledge that the issue of blood tests for the presence of methoxyflurane would have been high on the list of matters they were likely to be questioned about, each witness would have made some enquiries about that topic before they prepared their witness statement or, at the very least, before they gave their evidence. The fact that they were still speculating about the potential for such a test to be conducted leads me to conclude that there was no readily available test which could have been requested.
[149]Accordingly, given that all of the relevant witnesses from the Respondent who gave evidence said they had never heard of a test for possible methoxyflurane use, no criticisms can be made of the QAS managers who were involved on the night for their failure to ask for such test to be undertaken.
[150]In relation to the "lost opportunity" to interview Mr Bakens, I simply observe that while it might have been preferable for Mr Berry to have interviewed him before he completed his report, nothing really turns on the matter. Mr Costello was provided with a copy of Mr Bakens' contemporaneous note before he attended his interview with Mr Berry on 4 August 2016 and was able to address the matters contained within it, both at that time and in his subsequent responses to Mr Hammond's show cause letters.
Other unfairness in the investigation and dismissal process (see paragraph 7.20 of Mr Costello’s submissions, quoted in paragraph [92] above)
[151]The first three items under this heading can be dealt with quickly. The claim that the investigation was prejudged, because of the contents of Mr Bowles' letter to the Health Ombudsman, is without merit for the reasons advanced above. In addition – unless it is being suggested that Mr Costello's answers to Mr Berry (and Mr Hammond) would have been different had he known – I do not see the relevance of the submission that it was unfair to Mr Costello not to inform him that QAS proposed to use the outcome of the investigation, when finalised, to update the Health Ombudsman.
[152]I also fail to understand how it was unfair, or influenced the termination decision, that Mr Berry misstated the evidence on several occasions when he was questioning Mr Costello on 4 August 2016. Mr Costello denied using methoxyflurane and his responses to the questions asked of him by Mr Berry would not have changed whether Mr Berry framed his questions accurately or in the way he did.
[153]Given that Mr Costello acknowledged, in his reply submissions, that the matter concerning his documentation of discards "ultimately amounts to little but a distraction", I do not see the need to deal with this submission (which was contained in his earlier closing submissions).
[154]Despite Mr Costello's criticism of Mr Emery's decision to speak directly with Mr Hoey and Ms Garrett, I also do not accept the submission that Mr Emery's discussion with Ms Garrett "contaminated" her evidence. Ms Garrett, who was an impressive witness (as my notes, taken during the proceedings, confirm), did not give any evidence which added to, or detracted from, what she wrote in her contemporaneous note (of 2 June 2016) and what she accepted she told Mr Emery and Ms Pereira (on 25 October 2016).
[155]Importantly, from my perspective, she made it clear that she could not remember now whether Mr Costello was holding the Penthrox whistle itself or whether he was holding the string. In giving this response, it was very apparent that Mr Emery's question to her, about whether the strap of the inhaler was around Mr Costello's wrist or not, did not contaminate her response to him or what she said when giving her evidence.
[156]Finally, I have given no weight to the 13 "errors and omissions" in Mr Berry's report on which it was claimed the decision makers relied. A number of these items were included under other headings and their additional inclusion seems more to do with bolstering the number of criticisms of the report rather than adding serious arguments which require consideration.
[157]In any event, the submission that these "errors and omissions" influenced Mr Emery's ultimate decision has not been made out. As the Respondent argued at one point in its closing submissions, any allegation without some factual evidence to underpin it – of which there were many – "cannot give rise to any finding of fact".
The personal and economic consequences for Mr Costello (see paragraph 7.21 of Mr Costello’s submissions, quoted in paragraph [92] above)
[158]It is obvious that his termination by QAS will have certain personal and economic consequences for Mr Costello. He has lost his employment with the major employer of paramedics in the State of Queensland and his future ability to work in that capacity will, more likely than not, require him to turn to the private sector or, possibly, interstate.
[159]However, while relevant, the consequences for Mr Costello as a result of his loss of employment is but one matter which needs to be considered in deciding this Application. The primary consideration though, in my opinion, is the fact that the Respondent found, on the balance of probabilities, that Mr Costello used methoxyflurane while on duty, against a background where he denied (and continued to deny) that he had done so. If Mr Costello had admitted its use and explained the circumstances which led him to take that action, then the outcome (as Mr Emery indicated) might have been much different. Unfortunately, that is not what happened.
Summary
[160]At paragraph [111] above, I stated that I was satisfied that the Respondent had established to my reasonable satisfaction, to the Briginshaw standard, that Mr Costello did misappropriate and use methoxyflurane in (at least) the toilet in which he was found by Mr Hoey and Ms Garrett on the evening of Thursday, 2 June 2016.
[161]In that respect, while I have largely set out my own reasons for reaching that decision, I should also record that I have accepted the submissions of the Respondent in support of that contention – with the exception of those aspects which concern Mr Bakens' observations of Mr Costello being consistent with methoxyflurane use – which are summarised at paragraphs 22 to 30 of its closing submissions (recorded in paragraph [92] above).
[162]On my analysis of the evidence before Mr Emery, he was entitled to conclude, on the high balance of probabilities, that Mr Costello did misappropriate and use methoxyflurane in (at least) the second toilet. Having reached that conclusion, he was also entitled to decide – in the absence of any mitigating circumstances advanced by Mr Costello – that the appropriate penalty was the summary termination of Mr Costello's employment.
[163]Although Mr Costello challenges the fairness of that decision (see his arguments, and my consideration of them, at paragraphs [100] to [159] above), I am not persuaded, by either the evidence or the arguments presented on his behalf, that Mr Costello's termination was harsh, unjust or unreasonable.
[164]Rather, subject to the exceptions identified above - concerning the "secreting" of the methoxyflurane inhaler and what should be made of Mr Bakens' observations - I have been persuaded to accept the submissions of the Respondent in support of its arguments that there was a sound or valid reason - to the Briginshaw standard - for the summary termination of Mr Costello's employment and that the procedures it adopted which led to that decision were fair and reasonable.
[165]For the foregoing reasons, I dismiss the Application.
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