Gamblin v State of Queensland, (Queensland Ambulance Service)
[2018] QIRC 129
•10 October 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: Gamblin v State of Queensland, (Queensland Ambulance Service) [2018] QIRC 129
PARTIES:
Gamblin, Dean
(Applicant)v
State of Queensland (Queensland Ambulance Service)
(Respondent)CASE NO:
TD/2017/59 PROCEEDING:
Application for Reinstatement
DELIVERED ON:
10 October 2018 HEARING DATES:
23, 24, 26, 27 April 2018 and
12 June 2018 (Hearing)HEARD AT:
Brisbane
MEMBER:
Deputy President Swan ORDERS [1] The Application for Reinstatement is dismissed.
CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Applicant dismissed for misconduct - Advanced Care Paramedic dismissed for initiating inappropriate procedure on patient - Admission by Applicant of such action - Applicant's rationale for his conduct not accepted as genuine - Extensive Investigation conducted by Respondent - Dismissal not harsh, unjust or unreasonable - Application for Reinstatement dismissed.
LEGISLATION: Industrial Relations Act 2016
Ambulance Service Act1991
Code of Conduct for Queensland Public Service
National Code of Conduct for Health Care Workers (Queensland)CASES: Byrne and Another v Australian Airlines Limited [1995] HCA 24; 131 ALR 422
Bostick (Australia) Pty Ltd v Gorgevski 36 FCR 20
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
Stark v P&O Resorts (Heron Island) [1993] 144 QGIG 914
Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 17
APPEARANCES: Mr E. Shorten of Counsel instructed by Ms L. Naper of Cube Law for Mr Dean Gamblin, the Applicant.
Mr J. Merrell of Counsel, instructed by Ms L. Koger of Crown Law, for State of Queensland (Queensland Ambulance Service), the Respondent.
Reasons for Decision
[1]On 30 June 2017, Mr Dean Gamblin (the Applicant) lodged an Application for Reinstatement to his former casual position as an Advanced Care Paramedic (ACP) working at the Gold Coast Local Ambulance Service Network which is part of the Queensland Ambulance Service (QAS) (the Respondent).
[2]The Applicant was dismissed by QAS because of the conduct he engaged in, by inserting an Oropharyngeal Airway (OPA) into a young female patient (the Patient) at about 3.00am on the morning of 29 June 2016 at the Gold Coast Robina Hospital (the Hospital).
[3]The Applicant had no prior involvement with the Patient who had come to the Hospital under the care of two other QAS officers viz., Mr Bird (Advanced Care Paramedic 2) and Ms Weber (Advanced Care Paramedic 2). The Patient had been taken to the Hospital by ambulance from the Q1 Hotel on the Gold Coast because of intoxication. Mr Bird and Ms Weber had been told by those with the Patient at Q1 Hotel, that she had been drinking and that she had been punched in the mouth earlier on. The evidence of Mr Bird and Ms Weber was that they were attempting to locate a family member who could take the Patient home as they did not believe at that time that she required hospitalisation. No family member was located and the Patient was ultimately transported to the Hospital.
[4]The Applicant was working separately from Mr Bird and Ms Weber, in a different Ambulance and with a different patient. On that evening, the Applicant was working with Graduate Paramedic (GP), Mr Stearne. At around 2.30am, the Applicant and Mr Stearne transported an elderly patient to the Hospital Emergency Department. That patient was under their care until they got to the Hospital.
[5]Both the Applicant and Mr Stearne (GP) and ACP's Mr Bird and Ms Weber, happened to be at the Hospital at the same time with their own patients.
The Legislation
[6]Section 316 of the Act provides:
316 When is a dismissal unfair
A dismissal is unfair if it is harsh, unjust or unreasonable.
Onus of Proof
[7]McHugh and Gummow JJ in Byrne and Another v Australian Airlines Limited[1] relevantly stated:
[1] [1995] HCA 24; 131 ALR 422.
(iv) In Bostick (Australia) Pty Ltd v Gorgevski [No. 1] … a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:
132. "These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct".[2]
[2] Ibid, [131]-[132].
[8]Because this dismissal was for misconduct on the Applicant's part, the Respondent bears the onus of proof, which is the civil standard of proof i.e. on the balance of probabilities (see Wang v Crestell Industries Pty Ltd[3], per Cahill VP, Hill J and French C).
[3] (1997) 73 IR 454.
[9]The Respondent submits that where a case of serious misconduct has occurred, the evidence relied upon must be strong. In Stark v P&O Resorts (Heron Island)[4] Chief Commissioner Hall (as His Honour then was) relevantly stated:
Employees have a right to expect they will not be treated as guilty of such conduct on the unsafe materials which appear to have been relied upon in this case. For myself, I would add, though it is not a proposition which is necessary to the decision in this matter, that whomsoever it is on whom the ultimate onus of proof in an unfair dismissal case, on a grave allegation of criminal misconduct, the onus must inevitably shift to the proponent of the allegation and, equally inevitably, the higher onus described in Briginshaw v Briginshaw (1938) 60 CLR 336 at 326 and M v M (1988) 166 CLR 69 at 76-77 must be applied, compare Byrne and Another v Australian Airlines Limited (1992) 45 IR 178 at 192, per Hill J.[5]
[4] [1993] 144 QGIG 914.
[5] Ibid, 916.
[10]These issues were discussed in Neat Holdings v Karajan Holdings Pty Ltd[6] where Mason CJ, Brennan, Deane and Gaudron JJ relevant stated [footnotes omitted]:
[6] [1992] HCA 66; 67 ALJR 170, 171.
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or … On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary "where so serious a matter as fraud is to be found" … Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw (1938) 60 CLR, at p 362; and see, also, Helton v Allen (1940) 63 CLR, at p 711):
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…" [7]
[7] Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170, 171.
The Respondent's Allegations
[11]The Respondent submits that the CCTV footage of the triage area of the Hospital on the morning of 29 June 2016 and other evidence, clearly proves that the Applicant's conduct at that time constituted misconduct within the meaning of s 18A of the Ambulance Service Act1991, on the basis that the two allegations made against him had been substantiated.
[12]Those two allegations made by the Respondent against the Applicant are as follows:
Allegation 1
That on 29 June 2016 at the Gold Coast Robina Hospital, [the Applicant] conducted an unauthorised medical procedure on a patient who was in the care of other QAS Paramedics; and
Allegation 2
That on 29 June 2016 at the Gold Coast Robina Hospital, [the Applicant] contravened QAS Procedures and Guidelines - namely:
· Clinical Practice Guidelines Neurological/Altered level of consciousness;
· Clinical Practice Procedures: Assessment/Glasgow Coma Scale; and
· Clinical Practice Procedures: Airway management/Oropharyngeal airway insertion.[8]
[8] Exhibit 23, [486].
WITNESSES
[13]The following witnesses were called to give evidence in the Hearing of this matter:
Witnesses for the Applicant
·Mr Dean Gamblin, the Applicant; and
·Mr Stephen Pearce, Station Manager and Advanced Life Support Paramedic, New South Wales Ambulance Service.
Witnesses for the Respondent
·Mr David Stearne, Advanced Care Paramedic 2 [*Graduate Paramedic (GP)];
·Mr Darren Mr Bird, Advanced Care Paramedic 2;
·Mr Michael Metcalfe, Executive Director, Corporate Services (QAS)/Assistant Commissioner Sunshine Coast;
·Mr Sean Fitzjohn, Clinical Nurse [*Registered Nurse], Emergency Department Robina Hospital;
·Ms Clare Nancarrow (nee Murray), Advanced Care Paramedic 2 [*Graduate Paramedic in Practice (GPIP)];
·Ms Maya Weber, Advanced Care Paramedic 2;
·Mr John Hammond, Assistant Commissioner, General Manager Gold Coast Local Ambulance Service Network;
·Dr Daniel Bodnar, Senior Staff Specialist, Lady Cilento Hospital and Assistant Medical Director, Queensland Ambulance Service;
·Ms Deanne Taylor-Dutton, Deputy Commissioner, Service Planning and Performance (QAS) [*Assistant Commissioner, Gold Coast Local Ambulance Service Network]; and
·Dr Stephen Rashford, Medical Director Queensland Ambulance Service.
[*Indicates the positions and/or title of those individuals at the relevant material time.]
APPLICANT'S SUBMISSIONS
The Applicant's work history
[14]The Applicant commenced employment with the QAS on 3 March 2008 as a Student Ambulance Officer. He completed his training in February 2011, receiving a Diploma in Paramedical Science and became a qualified Paramedic.
[15]In February 2011, the Applicant became a full-time Advanced Care Paramedic (ACP) employed by QAS.
[16]In January 2015 the Applicant chose to work as a casual ACP employee. The Applicant worked continuously as an ACP between February 2011 and about 22 July 2016, at which time the QAS ceased the engagement of the Applicant as a causal employee on the basis of an investigation process commencing regarding the allegations that are the subject of this Application[9].
[9] Respondent's submissions, p 9, [21].
[17]Relevantly summarised by the Respondent, it is not in contention that the key responsibilities of an ACP are as follows:
(a) attending to patients using the full range of pre-hospital emergency care techniques available to a Paramedic and extended skills when appropriate, by assessing the most appropriate pathway of care;
(b) maintaining a high quality of patient care ensuring that consideration is given at all times to the feelings and needs of the patient; and
(c) maintaining standards and observing the code of conduct expected of a QAS professional Paramedic officer at all times.[10]
[10] Ibid, [23].
[18]Specific duties for an ACP are as follows:
(a) providing a high standard of pre-hospital emergency patient care;
(b) demonstrating a commitment to continuing professional development by attending relevant education sessions as required and to be responsible for keeping current with any new developments and changes to the QAS Clinical Practice Guidelines;
(c) delivering sensible and practical clinical decisions in the best interests of the patient, within a framework of evidence-based, reasonable and professional judgements;
(d) complying with the provisions of the Ambulance Service Act1991 and all QAS policies and procedures as determined by the Commissioner; and
(e) to communicate effectively, appropriately, and respectfully with patients, relatives, health professionals, members of the public, other emergency services staff and key stakeholders to ensure the best possible outcome for the patient is achieved.[11]
[11] Respondent's submissions, pp 10-11, [24].
[19]The Applicant agreed that as at 29 June 2016, as an ACP, he was required to observe the QAS Clinical Practice Guidelines Neurological/Altered Level of Consciousness (the ALOC guideline)[12].
[12] Exhibit 22, p 19-22.
[20]The Applicant also agreed that as at 29 June 2016, he was required to observe the QAS Clinical Practice Procedure on Assessment/Glasgow Coma Score (the GCS Procedure).
[21]A GCS Procedure is described by Dr Rashford (Medical Director at QAS) as follows:
[10] The GCS is an internationally recognised score that records an individual's eye opening, verbal response and motor responses. The GCS was originally used to assess a patient's conscious level where they had suffered a traumatic brain injury. It is used within QAS to assess a person's conscious state. The validity of a GCS measurement is variable in conditions outside pure head injury, albeit the recorded score provides some idea to clinicians of the current conscious state.
[11] The minimum GCS is three (3) and the maximum score is fifteen (15).
[12] A person's GCS is assessed by, for example:
(a) Speaking to the patient;
(b)Touching the patient, for example squeezing their hands;
(c)Shaking the patient; or
(d)For those patients who aren't awake, the level of response is determined following application of painful stimulus. This includes rubbing the sternum or applying pressure to a digit or peripheral nerve site. The force should be the minimum required to elicit a response.[13]
[13] Ibid, pp 2-3, [10]-[12].
[22]Dr Rashford stated that the insertion of an Oropharyngeal Airway (OPA) into a patient's mouth and throat is not an accepted practice for assessing a patient's GCS. The insertion of an OPA forms part of airway management and should ideally be as painless as possible[14].
[14] Ibid, p 3, [13].
Brief background to the incident at the Hospital on 29 June 2016
[23]The uncontroverted facts of this case are that the Patient had been admitted to the triage area of the Hospital on 29 June 2016 under the care of two ACP's, Mr Bird and Ms Weber. Also unchallenged is that the Applicant had no connection with the Patient but at some point determined to insert an OPA into the Patient's mouth.
[24]The Applicant's evidence was that when observing events in the triage area of the Hospital he formed the view that the Patient had a GCS of (3) and that her airway was at risk. He said that the Patient's treating ACP's were not appropriately looking after her. As such, he said that he had asked the triage nurse on duty (viz., Mr Sean Fitzjohn) whether he should "get an OPA" and then with the triage nurse's approval ("sure"[15]) he performed the OPA procedure.
[15] Exhibit 1, p 4, [28].
[25]Mr Fitzjohn's evidence was that he had no recollection of the events occurring in the CCTV footage or of any conversation had with the Applicant on that morning.
[26]While he said that he had no recollection of the incident, when drawn to his notes from that morning by the Respondent asking "Based upon your triage notes, did this patient, at the time you triaged her, did she need an OPA?", Mr Fitzjohn responded "I haven't written anything about airway compromise, so probably not at that time"[16].
[16] T3-133.
[27]The Respondent's claim was that the Applicant had no genuine concern about the Patient's airway patency and that he used the OPA on the Patient as a means of showing Mr Stearne, the Graduate Paramedic who was working with him on 29 June 2016, how to get a response from a patient using an OPA.
CCTV Footage
[28]The CCTV footage of the incident of 29 June 2016 covers the period of time when the Applicant walked into the triage area of the Hospital through to his removal of the OPA from the Patient's mouth. The CCTV footage did not record any verbal communications between the parties present at the time.
[*The CCTV footage was tendered into evidence by way of annexures to Exhibits 22 and 23]
Evidence from those in the triage area of the Hospital on 29 June 2016
[29]On 29 June 2016, the Applicant was working on the night shift with Mr Stearne, Graduate Paramedic.
[30]At around 2.30am, the Applicant and Mr Stearne transported an elderly patient to the Hospital's Emergency Department. They arrived at the Hospital prior to the arrival of ACP's Mr Bird and Ms Weber and their Patient (viz., the Patient).
[31]The CCTV footage shows Mr Bird and Ms Weber and the triage nurse, Mr Fitzjohn, standing at the Patient's stretcher. The stretcher bed was upright but partially reclined.
[32]Two other QAS Paramedics viz., Mr Edwards and Ms Nancarrow, Graduate Paramedic in Practice, were standing beside another stretcher in front of, but slightly right of the Patient. [Mr Edwards was not called to give evidence in these proceedings.]
[33]Ms Weber is seen to shake the stretcher upon which the Patient was lying, for a couple of seconds.
[34]Mr Fitzjohn is seen to leave the Patient as he moves away to the left hand side of the screen. Ms Nancarrow remains with her patient. Mr Edwards also exits from view to the right hand side of the screen.
[35]The Applicant is seen entering the area from the bottom right of the footage. Mr Stearne is viewed following him. Ms Weber is seen looking at the Applicant for a short period of time before looking away. The Applicant approaches the Patient and is standing on the Patient's left hand side of the stretcher. The Applicant has an OPA in his right hand which is placed down next to his leg.
[36]The Applicant is seen moving his left hand to the Patient's mouth and using his right hand he inserts the OPA into the Patient's mouth. The Applicant is not wearing protective gloves.
[37]Ms Weber watches from the right hand side of the Patient's stretcher and Mr Stearne watches from the end of the Patient's stretcher. The CCTV footage shows that Ms Nancarrow looks up towards the Applicant and the Patient from where she is standing. The footage shows that when the Applicant inserts the OPA into the Patient's mouth, the Patient's head moves
[38]Ms Nancarrow's patient turns and looks towards the Patient and her stretcher. With the OPA in her mouth, the Patient attempts to lift up her arms. The Applicant then changes hands and holds his left hand near to the Patient's mouth and appears to hold the OPA in the Patient's mouth.
[39]The Applicant then places his right hand behind the Patient for about 3-4 seconds and for around 3 seconds the Patient's head moves back and forth on her pillow. At a point, the Patient's arms are upright. The Applicant, during this time, continued to hold his left hand near the Patient's mouth, and it appears that he is pushing the OPA into her mouth or attempting to adjust it.
[40]Around this time, Mr Fitzjohn approaches the stretcher from the right hand side and looks at the Patient. At this time the Applicant has his left hand near the Patient's face and his right hand is at the back of the Patient's head. It is noted that the Patient's head moves backwards. It is also noted that the Applicant continued to push the OPA into the Patient's mouth, using his left thumb.
[41]During this period it is clear that there is movement from the Patient i.e. Patient's head turning away from the Applicant and then starting to lean to the right hand side of the stretcher.
[42]Mr Fitzjohn then leaves the Patient and the Patient starts to lean her head, arms and upper body away to the right hand side of the stretcher. At this point, the Applicant pulls the Patient back towards him.
[43]Mr Stearne then leaves the area and the Applicant uses his left hand and a sheet to remove the OPA from the Patient's mouth. The Applicant is then seen pulling the Patient back towards him and the Patient is eventually left lying on her right hand side facing Ms Weber. The Applicant then moves out of sight of the footage and exits the triage area.
[44]Mr Bird returns to the stretcher carrying a work book which he places on the triage desk. At this point, the Patient again leans over to the right hand side of the stretcher towards Ms Weber. Ms Weber repositions the Patient, and this involved her moving her head by her pony tail and repositioning her.
[45]The whole period of time from when the Applicant reaches the side of the Patient's stretcher and inserts the OPA into her mouth and then removes the OPA from her mouth and leaves the side of the stretcher is 52-53 seconds.
The Applicant's Evidence of the events of 29 June 2016
[46]At around 2.50am on the morning of 29 June 2016 at the Hospital, the Applicant noticed ACP's Mr Bird and Ms Weber, entering the triage area with the Patient, who, in his view, was in an altered level of consciousness. He observed at that time the two ACP's were assessing the Patient's GCS while touching and talking to the Patient.
[47]He noticed that the Patient was unresponsive to a sternum rub, and as he thought her GCS was three (3), he became concerned that she was at risk of losing airway patency.
[48]He did not believe at this stage that the two ACP's (viz., Mr Bird and Ms Weber) were properly attending to the Patient.
[49]The Applicant says he was talking to the triage nurse (viz., Mr Fitzjohn) and others around this time, and that he had asked Mr Fitzjohn whether he should get an OPA for the patient. He said that Mr Fitzjohn said "sure"[17]. This conversation was not recalled by Mr Fitzjohn and is not reflected in his notes of that morning.
[17] Exhibit 1, p 4 [28].
[50]The Applicant immediately went to his Ambulance to get the OPA and when he returned to the triage area he approached the Patient and inserted the OPA into the patient's mouth. He says that after about 4 to 5 seconds the patient moved and he repositioned the OPA to ensure the patency of the Patient's airway. About 10 seconds later, the Applicant stated that he adjusted the Patient's head and lifted her chin, again to ensure patency of her airway[18].
[18] Ibid, [30].
[51]The Applicant noticed some sputum on the Patient's mouth after he had removed the OPA and he wiped that away.
[52]The Applicant says that no-one in the triage area on that morning had attempted to stop him performing the insertion of the OPA into the Patient's mouth.
[53]Upon leaving the triage area, the Applicant said "the Patient was more conscious than she had previously appeared and was able to maintain her own airway"[19].
[19] Exhibit 1, p 4 [33].
[54]The Applicant said that "in hindsight, I acknowledge that before doing the procedure, I should have:
(a) conducted my own GCS assessment;
(b) brought in a full set of equipment;
(c) measured the sizing of the OPA on the Patient (instead of relying on my
(d) experience to conduct my own visual assessment of the size required);
(e) put the patient in a supine position; and(f)recorded my involvement with the Patient on the relevant paperwork afterwards.[20]
[20] Ibid, p 5 [37].
Mr Stearne's Evidence
[55]As of June 2016, Mr Stearne was employed as a Graduate Paramedic at the Coolangatta Station which is part of the Gold Coast Local Ambulance Service Network.
[56]Mr Stearne first worked with the Applicant on 28 June 2016. That shift covered 28 to 29 June 2016 with a shift roster time of 7.00pm to 7.00am.
[57]On two occasions prior to the incident at the Hospital on 29 June 2016, the Applicant had talked to Mr Stearne about being able to get a response from a patient who was not responding through the use of an OPA. One of those instances occurred when he and the Applicant were either in the ambulance bay or in the write-up room at the Hospital, both of which are located outside of the emergency Department of the Hospital[21].
[21] Exhibit 14, p 2 [11].
[58]Mr Stearne had noticed at the Hospital that a triage nurse was attempting to get a response from a female Patient using a physical cue.
[59]He recalled the Applicant at some point saying to him words to the effect "watch this" or "here watch this"[22].
[22] Ibid, p 3 [15].
[60]The Applicant walked into the triage area and inserted an OPA into the Patient's mouth. The Patient was not their patient but one who had other ACP's attending to her.
[61]He believed that neither he nor the Applicant knew anything about the Patient as she was not under their care.
[62]Under Cross-Examination, Mr Stearne was repeatedly asked whether the Applicant had in fact mentioned OPA's prior to inserting the OPA at the Hospital. Mr Stearne's evidence during the investigation process differed on occasions as to how many times the Applicant had spoken to him about the use of an OPA but his evidence was consistent on the point that the Applicant had discussed with him the use of OPA's.
[63]The Applicant submits that Mr Stearne's evidence is "inadequate, unreliable and changeable"[23].
[23] Applicant's submissions, 49 [4.22]
[64]Mentioned was that fact that Mr Stearne was insufficiently experienced to have made any reasonable assessment of the incident and the Applicant's intentions.
[65]The Respondent questioned the particularity given by Mr Stearne concerning the events of 29 June 2016, sometime after the incident which were in contrast to the evidence he had given at an earlier time.
[66]It is noted that in his interview with Ms Pereira and Mr Metcalfe on 17 March 2017, Mr Stearne initially did not have the benefit of his record of interview of 1 August 2016 and was unable to recall the exact comments he had made at that time. However, upon referring to his original statement, Mr Stearne reiterated his evidence that the Applicant had commented to him prior to the incident about inserting an OPA to get a response from a Patient.
[67]While during the course of various interviews the QAS had with Mr Stearne, the constant thread of his evidence was that the Applicant had talked to him about how one might get a response from a patient by using an OPA and that the Applicant had been discussing this point with him prior to the incident of 29 June 2016. He also mentioned on several occasions that he believed that the Applicant had been trying to mentor him with regard to OPA's and while his evidence had differed as to the number of times the Applicant had spoken about OPA's, the consistent theme of his evidence was that the Applicant had been discussing with him the use of OPA's.
[68]He added that on 29 June 2016, in his view, the Applicant had wanted to show him how to insert an OPA. His opinion was that the Applicant was not concerned about the patient per se, but rather that he had wished to show Mr Stearne how to insert an OPA for the purpose of identifying its efficacy.
Mr Bird's Evidence
[69]Mr Bird, at the time of the incident, had been working for QAS at the Southport Station. Mr Bird knew of the Applicant but had never worked with him
[70]On 29 June 2016, Mr Bird and Ms Weber attended upon a young female patient from the Q1 Hotel on the Gold Coast. The Patient was in her mid-20s and was intoxicated. He held no concerns that the Patient had taken anything other than alcohol. Mr Bird and Ms Weber had been told that the Patient had been drinking and was punched in the mouth sometime that evening.
[71]The Patient was taken to the Hospital after both he and Ms Weber had tried to call a family member who might be able collect the patient so that she wouldn't need to be transported to Hospital. Had they found such a person, then it was his view that the patient would not have needed to go to Hospital.
[72]While at Q1 Hotel, Mr Bird conducted an initial assessment of the Patient including assessing her GCS. He performed a sternum rub as part of his initial assessment. This action woke the Patient and he was able to talk to the Patient and he was able to walk with the Patient to the ambulance. He did not carry out any further sternum rub on the Patient while she was in his care as they were generally very painful.
[73]Mr Bird was the Patient Care Officer in the ambulance and during the Patient's transportation to the Hospital he monitored her and stated that "everything was fine[24]".
[24] Exhibit 15, p 2 [11].
[74]He formed the view that there was nothing out of ordinary in terms of the Patient's responses. He had in fact removed the monitors from the Patient on her way to the Hospital as he believed that this was no longer required.
[75]At the Hospital, the handover of the Patient to the triage nurse occurred and the triage nurse went to the patient to awaken her. The Patient was placed upright on the stretcher for this purpose.
[76]Mr Bird noticed the Applicant walking past the triage desk on the way to his ambulance.
[77]Mr Bird's evidence was that:
Mr Gamblin then came back in, approached the female Patient and shoved an oropharyngeal airway (OPA) into her mouth. At the time, I was standing at the triage desk doing my paperwork for the female Patient. I did not take any notice of Mr Gamblin when he walked back into the triage area, however, he caught my eye because I saw him come up behind the female patient and I was wondering what he was doing as the female Patient was not Mr Gamblin's patient, and Mr Gamblin was not one of the female Patient's treating paramedics.[25]
[25] Ibid, p 3 [21]
[78]Mr Bird said at that moment he was confused as to what the Applicant was actually doing around a Patient who was not his. He said that when the Applicant inserted the OPA, the Patient sat up, her eyes opened and she started to gag. He says that it was clear to him at that point that the Patient was not going to tolerate the OPA.
[79]Mr Bird said that an OPA should just slide into a patient's mouth, without needing to push it in as the Applicant had done.
[80]As the Patient gagged, Mr Bird said that the Applicant continued to hold the OPA in the Patient's mouth. The Applicant then pulled the OPA out and "threw it on the female Patient's stretcher".
[81]Mr Bird said that he was in a state of shock at this event as the Patient had not shown any signs that she was having difficulty breathing.
[82]Also of concern to Mr Bird was that the Applicant had no need to intervene as he would not have been aware of the clinical status of the Patient and had no information available to him to support the decision he had made. Further, the Applicant had not sized the OPA to ensure that it was the correct size when inserting it into the Patient's mouth.
[83]Mr Bird said that the incident occurred very quickly and before the Applicant had left the area he had said words to the effect "that's how you wake them up"[26].
[26] Ibid, p 4 [32]
[84]When Mr Bird went to see the Patient, he noticed blood and saliva around the patient's mouth.
[85]In his statement, Mr Bird stated:
When I saw the blood, I was angry at what Mr Gamblin had done, because he had potentially ruined a perfectly good airway. I did not understand why he had done what he did. I was concerned that the female patient could have potentially aspirated, in circumstances where there was no reason why an OPA should have been inserted.[27]
[27] Exhibit 1, p 4 [38].
[86]In responding to the Applicant's claims that the Patient had an altered level of consciousness, Mr Bird believed that to be a broad statement, as an altered level of consciousness can encompass a wide range of factors.
[87]Mr Bird rejected the Applicant's claim that the Patient had a GCS of (3). He said that he had been with the Patient and monitored her for around one and a half hours whereas the Applicant would have no idea of her GCS. Had the Patient had a GCS of (3), this would have rendered her unconscious and not responsive at all, which was not the case[28].
[28] Exhibit 15, p 5 [47].
[88]Also rejected was the assertion that both Mr Bird and Ms Weber were not looking after the Patient. The Patient had been monitored by Mr Bird on the way to the Hospital and he had no concerns about her well-being. Her skin was not blue, nor did she have blue lips, which were all signs of difficulty if they had been evident.
[89]Mr Bird dismissed the Applicant's claims of concern for the Patient, stating that he could have spoken to the triage nurse, both ACP's who were attending to her, or one of the Doctors if he had the level of concern he expressed. He added that if there was a GCS assessment to be made at the Hospital, then it would have been performed by the triage nurse.
[90]Mr Bird also rejected the Applicant's claim that there was no evidence of blood around the patient's mouth after he had withdrawn the OPA. Mr Bird said he was the one who had wiped the blood and saliva from her mouth. He then placed the Patient in the recovery position and the Applicant took no part in the post-incident care of the patient, nor did the Applicant stay and help or ask any questions.
Ms Weber's Evidence
[91]Ms Weber's evidence largely mirrors that of Mr Bird.
[92]It was Ms Weber who drove the Patient to the Hospital while Mr Bird looked after her in the Ambulance. She said before leaving Q1 Hotel she had held no concerns for the Patient.
[93]Ms Weber said that if Mr Bird had any concerns regarding the patient he would have raised those with her during transit. She did not believe that the Patient was unconscious. The Patient was not gurgling, wheezing and was not struggling for breath, all of which could indicate airway problems. The patient's colour was "nice and pink" and she was breathing normally and not in need of an OPA[29].
[29] Exhibit 19, pp 2-3 [12],[17].
[94]She noticed the Applicant walking through the triage area, but he had not stopped there. However, at the point when the triage nurse was trying to get a GCS from the patient, the Applicant walked into the triage area from outside[30].
[30] Exhibit 19, p 3 [19], [20].
[95]Ms Weber, in her Affidavit, stated:
All of a sudden, Mr Gamblin approached the female Patient on her left hand side, moved her head towards him, and shoved something into the female patient's mouth. Initially I did not realise what Mr Gamblin had shoved into the female patient's mouth. At the time, I was standing on the right hand side of the female patient. Mr Gamblin did not say anything to me.[31]
[31] Ibid, [21].
[96]Ms Weber confirmed that, at that moment, the Patient had gagged on the OPA. She confirmed a view expressed by Mr Bird that if a Patient gags on an OPA, it is immediately removed because it would mean that the Patient still has reflexes in their airway. In her view, inserting an OPA into the mouth of a Patient who has airway reflexes could cause the Patient to vomit and obstruct their airway.
[97]Ms Weber stated that when the OPA slipped forward about an inch out of the Patient's mouth, the Applicant had pushed it back into her mouth[32]. She also noticed some blood stained sputum on the Patient's face as had Mr Bird.
[32] Ibid, [25].
[98]She believed that the Applicant, after taking the OPA from the Patient's mouth, had said words to the effect of "that always works". She believed that the Applicant "looked proud that he had got a response from the female Patient by inserting the OPA"[33].
[33] Ibid, [26].
[99]Ms Weber rejected all of the claims made by the Applicant as to the level of care they were providing to the Patient, and her responses were similar to those of Mr Bird.
Dr Rashford's Evidence
[100]Dr Rashford is the Medical Director of the QAS. He is a specialist emergency physician.
[101]Dr Rashford was not directly involved in the investigation into the incident as he had been on leave. Upon his return to work, Dr Rashford viewed the CCTV footage and became aware of the matters in contention.
[102]Dr Rashford's evidence concerning GCS levels was that an initial assessment of a GCS is dependent upon how the assessment was made in the first instance. It may be a best estimate at the time, dependent upon the circumstances. Dr Rashford stated "Sometimes it's been my experience that paramedics and any clinician will have a guess at what the GCS is initially, and then - then formally do it"[34].
[34] T5-13.
[103]The process of monitoring a GCS requires continual reassessment and it was presumed that the ACP's had performed their duties appropriately.
[104]There was evidence that the Patient had been punched in the face prior the ambulance arriving. Dr Rashford was clear that from his observation of the video and his medical knowledge that the Patient had no airway patency issues. He stated:
I'm quite comfortable that the Patient didn't exhibit - that the Patient did not exhibit any - any obvious clinical signs to me that they - they had an airway patency issue and nor were there any surrogate markers of the - the scene around them to suggest that there were concerns about that.[35]
[35] T5-21.
[105]Dr Rashford also stated that when watching the video it was clear that the Patient was rejecting the OPA stating:
… and the very fact that they're rejecting the airway means that they have a gag reflex, because to actually accept - to accept an airway such as this, you need no gag reflex, and that's - that's why you're putting it in is because when you've lost your gag reflex, that really stops you from - from protecting your airway from vomit…
Dr Rashford could also see from the video that the Patient was moving her limbs and observed ‘thrashing of the head'. The Patient's arching of her back when the OPA was put in her mouth was a clear example that the Patient was not tolerating the airway.[36]
[36] T5-22.
Mr Pearce's Evidence
[106]Mr Pearce was called by the Applicant to give evidence. Mr Pearce is a Station Officer with the New South Wales Ambulance Service.
[107]Mr Pearce's evidence was that all of the categories in a GCS assessment needs to be assessed for a proper GCS assessment to be made. These elements are eye, verbal and motor responses.
[108]In Cross-Examination, Mr Pearce stated that even if an assessment was made that a person's airway patency was at risk, an OPA would be used to maintain an open airway after manoeuvring the patient to open or clear the patient's airway.
[109]The Respondent submitted that Mr Pearce's evidence was to the effect that if a patient had a GCS of (3) and that represented the sole reason why a paramedic was concerned about the patient's airway patency, the first thing a paramedic would do, acting in a clinically responsible way, would be to try and clear the patient's airway by way of putting them in the lateral position using a triple airway manoeuvre, and if from either of those techniques, the patient's airway was not able to be maintained, a paramedic would then give consideration to an adjunct, such as an OPA or nasopharyngeal airway[37].
[37] Respondent's submissions, p 69 [222]; T2-61.
Ms Nancarrow's Evidence (nee Murray)
[110]Ms Nancarrow, a Graduate Paramedic in Practice, was present in the triage area of the Emergency Department of the Hospital on 29 June 2016. Her patient was on a stretcher in front of the Patient and reasonably close to that stretcher.
[111]Ms Nancarrow was in the course of attending to her own patient and during the period of events that evening, was inserting a cannula into the arm of her patient.
[112]Her evidence was that the Patient's skin was "pink". She explained that by using that term "pink", it meant that:
It was of normal skin colour. So - I would say your skin colour is pink, although it's clearly not a pink colour… It's a term that you use to say you are well perfused without any compromise to the oxygen level in the body.[38]
[38] T4-24.
[113]When the Applicant was inserting the OPA into the Patient's mouth, she recalls observing that "the Patient, sort of, moved the OPA away from her mouth"[39].
[39] T4-13.
[114]Ms Nancarrow recalled that the triage nurse, Mr Fitzjohn, came over to the Patient's stretcher and observed the procedure and appeared to be shocked by the process, stating words to the effect "that's an interesting way to wake up a patient"[40].
[40] T4-14; Exhibit 18, p 3 [19]
[115]She recalled that the Applicant appeared to be proud of his actions inserting the OPA into the Patient's mouth and she recalled that he had a smile on his face at the time[41].
[41] T4-19.
[116]Ms Nancarrow explained that during the course of the formal investigation into the incident, she responded only to the particular questions put to her. She made that comment as Counsel for the Applicant said that some of the evidence given in the Hearing of this matter was not present in commentary she had made during the earlier part of the Investigation.
Overview of the Investigative Process undertaken by the Respondent
[117]The Respondent has set out the time frame during which the various meetings were held with the Applicant or others. In that time frame there had been 57 occasions upon which those meetings had occurred. The dates cover a period from 29 June 2016 through to 2 October 2016, at which time the Applicant had obtained full-time employment with Ambulance Tasmania. The relevant persons mentioned in these documents have given evidence before the Commission and that evidence has been duly considered, where applicable.
[118]The Respondent claims that the Applicant had made statements during the Investigation and disciplinary process which were inconsistent with his Affidavit before the Commission. It stated that the inconsistencies in evidence highlighted the altered nature of the Applicant's reasons for inserting the OPA which was that he had done so because of his genuine concerns about the patency of the Patient's airway.
[119]During the course of the Investigation on eight occasions, the Applicant claimed that he had held discussions with Mr Bird and Ms Weber about the Patient prior to the insertion of the OPA. He made references to their awareness of his intentions and that conversations or at least "some interaction" was held with both ACP's regarding OPA's. When questioned at a later stage, the Applicant stated that "I can't remember what conversations or what interactions I had with them beforehand".
[120]In his Affidavit, the Applicant did not mention that he had spoken to Mr Bird and Ms Weber. His evidence at that time was that "… in hindsight I should have spoken to Mr Bird and Ms Weber before inserting the OPA"[42].
[42] Exhibit 2, p 4 [27].
[121]It is submitted by the Respondent that the inconsistencies in this evidence is notable.
[122]The Applicant was taken to the evidence he had provided to Mr Hammond dated 23 October 2026 where he had said:
Reflecting back on these events, I should have completed the full GCS assessment myself before any medical procedure, and consulted more with the crew.[43]
[43] Exhibit 20, JRH-11.
[123]During Cross-Examination, the Applicant was asked what he meant when he had told Mr Hammond that he should have consulted "more with the crew". The Applicant did not respond to that question only to repeat that he should have consulted more with the crew.
[124]The following questions were posed by the Commission to the Applicant:
DEPUTY PRESIDENT: No, no, that's not an answer to the question. Just ask that one again thanks.
MR MERRELL: The question that I'm asking you is this, by what you've put there in paragraph 4 on ordinary, everyday English, Mr Gamblin, doesn't that mean that you actually were discussing or did have some discussions with Mr Bird and Ms Weber and what you're saying here is, well, I should have talked to them more about it?
MR GAMBLIN: On reflection, yes, I should have spoken to them.
MR MERRELL: It's not an answer to my question, Mr Gamblin. I'm being - I think I'm being very clear in my question.
DEPUTY PRESIDENT: Yes I think, Mr Gamblin, you'll have to consider more the question that's asked. These are, from what I can see, responses of your own comments that you have made, and to be vague around every element of them is not going to assist you in your case at all. There's a suggestion of a lack of consistency, in what you even think might have happened, or in between comments, you've made to various interviewers, so go back to that one before and if you read it plainly:
"Reflecting back … I should have completed the full GCS assessment myself before any medical procedure, and consulted more with the crew".
DEPUTY PRESIDENT: What does that mean to you "consulted more with the crew"? Does it mean you've never consulted with them, or have consulted with them, but you should have had a more detailed conservation, what does it mean?
MR GAMBLIN: I think, yeah, I should have had more of a conversation…
DEPUTY PRESIDENT: No, but did you have a conversation with them?
MR GAMBLIN: I'm not sure, your Honour.
DEPUTY PRESIDENT: So why would you put that in. There's so many different versions of whether you had a conversation or not, but they're in your own words. It makes it very difficult. So listen to the question next time, and just try your best to answer them as honestly as you can.
MR GAMBLIN: Okay. Thanks
MR MERRELL: I'll give you one more go Mr Gamblin. I'll ask you one more time. Now, what you've put there in paragraph 4, that Her Honour's just asked you, doesn't that mean that you did have a conversation with Mr Bird and Ms Weber about the young female patient, but what you're saying there to Mr Hammond is you should have had a more detailed or more comprehensive discussion?
MR GABLIN: That appears to be correct."
MR MERRELL: So you agree with what I'm saying?
MR GAMBLIN: From what I've written, yes.[44]
[44] T2-96, 97.
[125]Further inconsistencies were noted by the Respondent in relation to the Applicant's description of events in the triage area of the Hospital.
[126]The Respondent said that in opening submissions, the Applicant had seen the triage nurse Mr Fitzjohn, perform a GCS assessment on the Patient and that was the cause of him believing that she had a GCS of (3) and her airway patency was at risk. However, when interviewed on 21 September 2016, he advised the investigators he could not remember if it was Mr Fitzjohn or the ACP's (Mr Brid and Ms Weber) who were conducting the GCS assessment. Further the Applicant agreed he had not told the investigators that he had seen anyone perform a sternum rub. In evidence during this Hearing, the Applicant said "I don't recall who was doing it"[45].
[45] T2-87.
[127]Both ACP's Mr Bird and Ms Weber denied conducting a GCS assessment on the Patient at the Hospital. Ms Weber thought that the nurse may have done so and Ms Nancarrow said she could not recall if anyone had performed a sternum rub.
[128]The Applicant had claimed that Mr Bird and Ms Weber were not looking after their Patient appropriately. It was claimed that they had not arranged for any monitoring equipment to monitor her breathing.
[129]In response to this claim, the Respondent said Mr Bird's evidence was that the Patient had been monitored by him on the way the Hospital and that he had held no concerns for her oxygen saturation because she was well perfused.
[130]Ms Weber's evidence was that the Patient's airways were not compromised and that her skin was pink - a view shared by Mr Bird, Ms Nancarrow and Mr Fitzjohn (in the notes he had made at the time).
[131]I have not accepted the Applicant's claim that he had asked Mr Fitzjohn if he thought an OPA should be used on the Patient. This is particularly so in the circumstances where Mr Fitzjohn did not recall the alleged conversation but significantly that there is no reference in his notes of any level of concern on his part regarding the Patient.
[132]Mr Bird's evidence was that he had no recollection of seeing the Applicant anywhere near Mr Fitzjohn nor did he see him speaking to Ms Weber or the Patient. Both Mr Bird and Ms Weber had seen the Applicant walking straight out of the Emergency Department, through the triage area and out to his ambulance to get the OPA and then walk directly back into the triage area. Both Mr Bird and Ms Weber were not challenged on this in Cross-Examination
[133]When the Applicant agreed that the Patient was "less unconscious" than he had thought, it appeared from the CCTV footage that he did not withdraw the OPA. What the footage showed was that he had pushed the OPA further into the Patient's mouth.
[134]The Applicant also referred to inconsistencies which it claimed to have occurred with some of the Respondent's witnesses during the course of the Investigation process and then later in evidence before the Commission.
[135]Mr Stearne's evidence was that immediately prior to the use of the OPA the Applicant had said words to the effect "watch this". The Applicant said he could not recall what he may have said to Mr Stearne but he agreed that he was encouraging Mr Stearne to watch what he was about to do[46]. Mr Stearne, on the CCTV footage, had followed the Applicant into the triage area.
[46] T1-90.
[136]The Applicant questioned why some witnesses (including Mr Fitzjohn) had not been interviewed until some four months after the incident. The Respondent, through Mr Hammond, said that it was not until 21 July 2016 that the Ethical Standards Unit of the Department of Health had referred the complaint concerning the Applicant back to QAS for its management.
[137]In response to that claim, it is noted that on 22 July 2016, Mr Emery, Deputy Commissioner of QAS advised the Applicant that QAS was to conduct further investigations in relation to the incident.
[138]On 1 September 2016, QAS was told that by the Queensland Police Service that the Patient did not wish to proceed with criminal charges against the Applicant.
[139]After these events, QAS advised that it could then investigate the matter and arrangements were made to interview the Applicant. The reasons for the time taken to interview certain witnesses at the Hospital is understandable in the circumstances.
[140]On 12 September 2016, the Applicant was advised that this was the case and in that letter the Respondent set out the allegations made against him. The allegations were that on 29 June 2016 at the Hospital, he had conducted an unauthorised medical procedure of inserting an OPA into the mouth of a Patient who was in the care of other QAS Paramedics.
[141]Prior to interviewing the Applicant, the Respondent states that it was fair and reasonable to interview other witnesses first so that their evidence could be put to the Applicant in his interview of 21 September 2016. This is a reasonable approach taken by the Respondent.
[142]The Respondent said the reasons for the delay were also that:
(a)Mr Fitzjohn worked for the Gold Coast and Health Service and not QAS and it was problematic in attaining his roster availability; and
(b)Time was taken in working through Mr Fitzjohn's trade union to make sure he had the appropriate representative for the interview.
[143]Concerning Mr Fitzjohn, the Respondent said that it was responsible for the delay and its view was that, while it would have been preferable to have a formal interview with him, it was difficult to achieve and as such the decision was made to obtain what information he could provide for the Investigation. As it transpired, Mr Fitzjohn reiterated that he did not recall the incident of 29 June 2016, but his evidence was that his notes confirmed that the Patient did not warrant any intervention at that time and that there was no reason to utilise an OPA on the Patient.
[144]A further complaint from the Applicant was that allegations against him had altered over time.
[145]In Mr Metcalfe's show cause correspondence dated 15 November 2016, reference is made to Allegation 1 and the potential contravention of section 3.1 of the Code of Conduct for the Queensland Public Service and contravention of the National Code of Conduct for Health Care Workers (Queensland). Concerning Allegation 2, reference is made to the potential contravention of clause 3.1 of the Code of Conduct for the Queensland Public Service and contravention of the ALOC guideline, GCS procedure and OPA procedure.
[146]What is explained by Ms Taylor-Dutton when she made her decision to terminate the services of the Applicant is that she only based her decision on her conclusions that Allegations 1 and 2 as earlier stated had been substantiated (at paragraph [12] of this decision).
[147]Ms Taylor-Dutton had made findings regarding the Code of Conduct for Queensland Public Service and the National Code of Conduct for Health Care Workers (Queensland) but had established that those matters did not impact upon her ultimate decision to terminate the services of the Applicant.
[148]Mr Metcalfe, in his 4 January 2017 show cause correspondence on penalty, referred to the injury caused to the Patient by her bleeding around her mouth after the insertion of the OPA. Contrary to the Applicant's view, this had been addressed previously and could not be seen as a new factor for the Applicant to consider.
[149]There was evidence that there had been no blood around the Patient's mouth prior to the insertion of the OPA, but that it was visible when the OPA had been removed. Mr Bird said he had noticed bleeding after the incident and he had wiped the blood and saliva from the Patient's mouth. As Mr Bird had been with the Patient for more than an hour before the OPA incident occurred, the Respondent said he was best placed to make that assessment. Ms Weber also noted that the Patient had a bit of a swollen lip at the time of the incident, but that it had not been bleeding. She noticed some blood in the sputum of the Patient after the removal of the OPA. I have accepted the evidence that there was blood in the Patient's sputum immediately after the OPA incident and that it was not present prior to that incident.
[150]A complaint of the Applicant was that the dismissal of the Applicant was "amateurish, and a breach of the rules of natural justice".
[151]I have been unable to accept that assertion. The information sought and provided through the investigatory process undertaken by the Respondent was significant and not amateurish or a breach of the rules of natural justice.
[152]The Act contemplates that the Applicant be given an opportunity to respond to the allegations made. In the material submitted, particularly the Investigation Report, the Applicant was provided with fulsome summaries of the interviews which were conducted with the various witnesses. In addition to that, as previously stated, was the ability of the Commission and all those involved in the Investigation process to view the CCTV footage of the incident as it unfolded at the Hospital on 29 June 2016.
[153]The CCTV footage is clear and, in my view, it shows the Applicant simply doing what he later says he regretted. There is no ambiguity, in my view, around the type of actions he took at that time.
[154]The Applicant has had ample opportunity upon which to respond to the allegations made.
[155]Reference was made by the Respondent to other matters which required consideration and which were in place during the Investigatory process.
[156]The first matter related to the Office of the Health Ombudsman (the OHO). The Applicant submitted that the matter had been referred there because the Respondent had been involved in an unsuccessful conciliation conference held on 2 August 2016, in the Queensland Industrial Relations Commission regarding the Applicant's application.
[157]The Respondent said that the evidence of both Doctors Rashford and Bodnar was that they had notified the OHO in early August 2016. The issue investigated by OHO related to whether it would issue an interim prohibition order against the Applicant because his conduct might pose a risk to persons and whether it was necessary to take action to protect the public health or safety. The OHO did not ultimately issue such an order and one of its reasons for not doing so was because the Applicant's employment had been terminated.
[158]The Respondent's comments regarding that outcome was that it could not be said that the failure of the OHO to make such an order meant that the Applicant's termination of employment was harsh, unjust or unreasonable.
[159]Originally Mr Tony Hucker, QAS Director of Clinical Quality and Patient Safety (whom did not give evidence in these proceedings), had not thought the incident warranted the termination of the Applicant's employment. Mr Hucker had no decision‑making authority in this matter.
[160]After Mr Hucker had expressed his views, he and Dr Bodnar reviewed the CCTV footage and they were of the opinion that the Applicant's conduct was inappropriate and did not reflect QAS standard clinical practice procedures.
[161]Ultimately it was the decision of Ms Taylor-Dutton that termination of Applicant's employment was the appropriate penalty. Ms Taylor-Dutton said that she had not been aware of Mr Hucker's views when she had made her decision, but in the event that she had known, she would still have continued with the decision which she ultimately made.
[162]Because of the view I have formed with regard to this Application, it is unnecessary for me to consider any other outcome and/or penalty in the circumstances of this case,
Conclusion
[163]With the effluxion of time since the events of 29 June 2016, it has been unsurprising that that some witnesses, when interviewed later, have no specific memory of the events of that morning. For example, I have not found it unusual that Mr Fitzjohn has no memory of the events in question. On a Sunday morning up to 120 patients would pass through the Emergency Department of the Hospital, and over the period of a week some 400 patients were seen in this Department. The inability for him to recollect one particular event is completely understandable. What is clear, however, is that his notes taken on that morning show that his view at the time was that the Patient did not have any airway constriction issues. That evidence is compelling.
[164]What has been of major significance in determining this matter is the availability of the CCTV footage which clearly provides core information as to the events of that morning. One can see the actions of the Applicant, the Patient and others at that time. This is not a matter in which the evidence has solely been adduced through a witness' memory and recollections of critical incidents that are subject to the Application. The CCTV Footage, albeit with no audio, speaks for itself and was viewed multiple times over the course of some five days of hearing.
[165]It is accepted that all of the evidence provided by the Applicant and the two ACP's, Mr Bird and Ms Weber is not provided in the CCTV footage which has only shown the main incident in the triage area on 29 June 2016. However, I have taken into account all of the evidence presented in this matter. It should be noted that the submissions made by each party in this case have been extremely voluminous and detailed. The primary and relevant points have been appropriately considered and mentioned.
[166]A significant factor for consideration are the admissions by the Applicant of his failings on that morning. Those failings included the following:
·The Patient was not under his care;
·He had not conducted his own GCS assessment of the Patient;
·He had not brought into the triage area a full set of equipment;
·He had failed to measure the size of the OPA on the Patient. Rather, he had relied upon his own visual assessment of the size required;
·That he had not put the Patient in a supine position; and that
·He also had failed to record his involvement with the Patient on the relevant paper work.
[167]I am unable to accept the claim that the Applicant held a genuine belief that he was required to intervene in the process with a Patient for whom he was not responsible. This is particularly so when the facts are that the Patient was already in an Emergency Department of a Hospital; and that the Patient was not his Patient and that he would not have had any direct knowledge of the Patient's history. Further, given the setting of the incident, where there was a triage nurse who has seen the Patient; where the Patient had two specific Paramedics allocated to observing her; where there are Doctors who would be available if called; and where all the necessary medical equipment would be available to utilise if required, it is unbelievable to accept that the Applicant felt there was an urgent need for him to interfere in the treatment of this Patient.
[168]The actions of the Applicant towards the Patient, around which there is credible evidence from Mr Stearne, ACP's Mr Bird and Ms Weber and Ms Nancarrow, support the view that the Applicant simply wanted to show his prowess at performing an OPA on the Patient which was not warranted.
[169]Against that background, the Applicant later acknowledged that during the course of inserting the OPA into the Patient's mouth, he was aware that she had not suffered from unconsciousness because of her reaction to the use of the OPA. The evidence then shows that he further pushed the OPA into her mouth regardless of that knowledge. As well, there is no evidence on the CCTV footage, and from the evidence of ACP's Mr Bird and Ms Weber and Mr Fitzjohn, of the Applicant speaking to them about this matter. Certainly from the CCTV footage and from the evidence given by those in the triage area, there is nothing to show that the Applicant had any interaction with anyone before placing the OPA in the Patient's mouth as well.
[170]I have not accepted the Applicant's comments when he initially states that he had been involved in "conversations" with others outside of the triage area with regard to this matter generally. Ultimately his evidence on that point was that he couldn't recall that at all.
[171]Having taken the OPA out of the Patient's mouth, there was no evidence from the footage of the Applicant attempting to speak to Ms Weber. Part of the Applicant's defence is that no-one tried to stop him. That may well be so as it appears that those in the triage area at that time were shocked by the Applicant's behavior. The fact that the whole incident only took some 52-53 seconds, more than suggests to me that those in the vicinity were taken by surprise.
[172]I have not accepted the Applicant's view that he believed that the ACP's were not looking after their Patient appropriately. The evidence shows that Ms Weber was present and observing the patient. Mr Bird was at the triage desk, a short distance away, filling out paperwork and the triage nurse had inspected the Patient.
[173]I have considered Mr Stearne's evidence and have accepted his comments that the Applicant had been discussing generally with him the use of OPA's and was using the occasion of involving himself with someone else's Patient as an opportunity to show him how to use an OPA.
[174]In reaching this decision I have also taken into account the evidence of Dr Rashford's evidence. Dr Rashford, in my view, was clearly able to comment upon what was seen in the CCTV footage. His analysis of the situation is based upon his lengthy experience in the area of emergency medicine. Dr Rashford's view was that the Patient was clearly rejecting the OPA at the commencement of the procedure initiated by the Applicant. I have accepted his evidence that the Patient had not shown any evidence that there was an airway patency issue.
Legislation
[175]Section 320 of the Act states as follows:
320 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to -
(i)the operational requirements of the employer's undertaking, establishment or service; or
(ii) the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance -
(i) whether the employee had been warned about the conduct, capacity or performance; or
(ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant.
[176]In considering the provisions of the Act, I have made the following findings:
[177]The Applicant had been provided with the reasons for his dismissal.
[178]The dismissal related to the employee's "conduct, capacity or performance". Ultimately the Applicant's actions were deemed to constitute "misconduct". In my view, that decision was open for the Respondent to make, given the gravity of the misconduct[47].
[47] Bostick (Australia) Pty Ltd v Gorgevski 36 FCR 20.
[179]The evidence which I have accepted is that the Applicant undertook a procedure on 29 June 2016 on a Patient at the Hospital which was totally unwarranted. It was done without due consideration being given to the Patient and it was also done in an environment where it was totally unreasonable and unnecessary for him to have done so.
[180]The incident occurred on the morning of 29 June 2016. The incident stands alone. In my view, the lack of judgement on the part of the Applicant exhibited in the incident of was extreme. What the Applicant displayed on that morning was an act of disrespect towards his colleagues, his profession, the training he had received from QAS and significantly as well, a lack of respect towards the Patient.
[181]The Applicant's actions were rightly deemed to constitute misconduct. The Respondent has discharged its onus in proving that the conduct so described occurred.
[182]The further evidence adduced from the witnesses who viewed this incident has also been compelling.
[183]I am conscious of the fact that the Applicant has admitted his shortcomings on this occasion. On the question of the Applicant's rationale for acting in the manner in which he did, I have not accepted that the Applicant at any time held a genuine belief that the Patient was in a parlous state. I have accepted the opinions of those who viewed this incident that it was the case that the Applicant was in effect "showing off" to Mr Stearne his knowledge and capacity concerning the effective use of an OPA on a patient.
[184]In effect, it was a gratuitous act on the Applicant's part and one that justly caused his dismissal.
[185]The evidence clearly shows that the Applicant was given ample opportunity to respond to the claim about his conduct.
[186]For completeness, I accept the statements made by Ms Taylor-Dutton in her assessment of the Applicant's conduct on 29 June 2016:
(b) Mr Gamblin had treated the patient with callous disregard and without an authorised purpose;
(c) Mr Gamblin's explanation that he relied upon his belief that he had concern for the patient's welfare was disingenuous. I did not accept Mr Gamblin's contentions in this regard. If a paramedic had considered the patient to be at "imminent risk" then he/she would have immediately raised his/her concerns with the treating paramedics and sought intervention. Mr Gamblin did not do any of this. Instead he left the ED area and returned only with an OPA, without a monitor/defibrillator, resuscitation kit or airway kit and he did so in circumstances where he had not sought the consent of the patient or the treating paramedics. Additionally, after inserting the OPA, Mr Gamblin held it in the patient's mouth for a considerable amount of time after she was seen on the CCTV to be struggling and where the witness information indicated that the patient had gagged on the OPA;
(d) The manner in which Mr Gamblin interacted with the patient, including by inserting the OPA into the patient's mouth without having conducted an appropriate patient assessment, nor positioning the patient in accordance with the Clinical Practice Procedures for Airway Management/Oropharyngeal Airway Insertion, was highly inappropriate… [48]
[48] Exhibit 23, pp 3-4.
[187]In my view, the Respondent has discharged its onus of proof in establishing that in all of the circumstances, the dismissal was not harsh, unjust or unreasonable.
[188]Accordingly, for the reasons above, I dismiss the Application.
Order
1. The Application for Reinstatement is dismissed.
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