Ison v Northern Rivers Area Health Service
[1997] IRCA 44
•03 March 1997
DECISION NO:44/97
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - employee autonomous clinical nurse consultant in womens’ health - employee sole practitioner - protocols regarding documentation and notification of pathology results - employee failed to notify respondent’s client’s of pathology results - employee failed to keep proper medical records - whether negligence - whether failure personal to the applicant or the responsibility of the employer
Workplace Relations Act 1996 s 170DE, s 170DC, s 170EA
Victor Eshak & Australian Rail, Tram And Bus Industry Union V Public Transport Corporation (IRCA - Marshall J Melbourne, 30 August 1996, unreported)
Julie Breen v Cholmondeley W Williams (High Court of Australia, 6 September 1996, unreported)
Burnie Port Authority v General Jones Pty Ltd ( 1992-4) 179 CLR 520
Sangwin v Imogen, IRCA, von Doussa J, 8 March 1996, unreported)
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)
Ranson v Director General of DOCS, matter no 16 of 1996, Government and Related Employees Appeal Tribunal,unreported, 4 December 1996
Bi-Lo v Hooper (1994) 53 IR 224
Schaale v Hoechst Australia (19932) 47 IR 249 at 252
AWU-Fime Union v Queensland Alumina (1995) 62 IR 385
Gibson v Bosmac (1995) 60 IR 1
Ison -v- Northern Rivers Area Health Service
NI96/1043
Before: Tomlinson JR
Place: Sydney
Date: 3 March 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI96/1043
BETWEEN:
Fiona ISON
Applicant
AND
NORTHERN RIVERS AREA HEALTH SERVICE
Respondent
BEFORE: TOMLINSON JR
PLACE: SYDNEY
DATE: 3 MARCH 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application of Fiona Ison be dismissed
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI96/1043
BETWEEN:
Fiona ISON
Applicant
AND
NORTHERN RIVERS AREA HEALTH SERVICE
Respondent
BEFORE: TOMLINSON JR
PLACE: SYDNEY
DATE: 3 MARCH 1997
REASONS FOR DECISION
This is an application for reinstatement and compensation allegedly arising from an unlawful termination that occurred on 21 December 1995 and is made under s 170EA of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996). The applicant commenced employment in February 1987 as a Clinical Nurse Consultant with the Maclean District Hospital. Re-structuring has taken place and the respondent is correctly now the Northern Rivers Area Health Service.
A major responsibility of the applicant was the taking of Papanicolou smears (“Pap smears”) from the respondent’s women patients (“clients”), forwarding those smears to the pathology department of Westmead Hospital, receiving the results back from Westmead and notifying the clients accordingly. It was the responsibility of the applicant to maintain various medical records including the Pap Smear Register. That Register listed 12 columns for the recording of client information, including “Results”, “Action” and “Advised”. The results column of Pap Smears was divided into the following categories: NAD being “no abnormalities detected”, EMA being “endocervical material absent”, BEN indicating “benign”, INFL indicating “inflammatory” and INFE stood for “infection”, W.V. meant “wart virus”, CIN indicating “cervical intraepathelialneoplasia” and OTHER refers to “other various results”. This “other” result could involve notification to the Cancer Council of NSW. In cross examination the applicant agreed that the cervix is important to overall female health and well being, and that cervical cancer or oedema carcinoma can be fatal. Further that Pap Smears reveal changes which may be indicative of the early onset of cancer. Since 1995 legislation has been introduced in New South Wales to alter the form of Pap Smear registers. The court heard no evidence as to how the new register was to operate. At the outset Mr Kimber on behalf of the applicant stated that in her capacity as a clinical nurse consultant his client occupied a very senior position working in the field of women’s health. The status of clinical nurse consultant is the highest rank a nurse practitioner can achieve in clinical nursing in New South Wales, providing an advanced level of nursing practice involving senior level of knowledge of initiative, of responsibly and therefore of accountability.
Following a complaint on 14 July 1995 by a client an investigation was carried out by the respondent who satisfied itself that there were 18 different cases wherein the applicant had failed to notify clients of Pap smear results in circumstances where the respondent asserted that those clients should have been notified. Mr Kimber further stated that there were a further 5 cases where the employer asserted that there was a failure to notify particular clients of the need to attend for a re-smear because of some uncertainty in the original Pap Smear result and that there were additionally 20 files the employer had extracted that demonstrated poor documentation of clients’ medical records by the applicant. Copious evidence was placed before the Court, not all of which was considered relevant for determination in light of the reasons for the applicant’s dismissal.
The applicant was the first women’s health nurse appointed in the area and it was contended on her behalf that she bore the responsibility to develop the job from the ground up. When the applicant initially applied for the position with the respondent, she had no prior experience in the area of women’s health, although she had worked in the area of midwifery in the hospital system generally. The applicant was especially selected by the respondent, trained by the respondent to be a women’s health nurse in Sydney by the Family Planning Association of New South Wales, and then brought back to the Grafton area to establish the service. Subsequently annual inservice conferences were arranged for women’s health nurses.
Marked as exhibit 1 was the applicant’s statement which listed her work history and qualifications, showing a high degree of training and experience. The exhibit stated that in the beginning the applicant was given an office in the Maclean Community Health Centre and that she was administratively responsible to the Team Leader at Maclean Community Health Service, under the Area Co-ordinator of Maclean Community Health Service. In her evidence in chief the applicant alleged she was not provided with any policies or procedures governing the notification of Pap Smear results to various clients. However it was the evidence of the applicant that she operated in an autonomous fashion, as a sole practitioner in her geographical area, and that she relied upon the “Family Planning Clinical Practice Manual” for the clinical side of her practice.
From 1987 until 1994 the applicant relied on the written advice and guidance issued by Westmead Pathology relating to the categorisation of pathology results. That advice was not produced to the Court. Recent review of Westmead’s notification procedures occurred on 30 June 1994. From 1987 it was the evidence of the applicant that all clients were invited to contact her, preferably on clinic days in Grafton or Maclean, to check their own results. From 1987 until late 1994, the applicant said that she advised her clients:
“If you don’t hear from me regarding your Pap Smear result,
everything is OK. If I need to contact you about your Pap Smear
for reassessing it be unsatisfactory, I will do so by telephone
or letter. The results take three or four weeks to return to me.”
From that time, 1987, until the 17 June 1994, when Westmead pathology issued a letter to the Women’s Health Clinics throughout New South Wales concerning categorisation of Pap smear results, the applicant alleged that there was no documentation advising as to the appropriate standards or procedures as to the notification of Pap smear results apart from the Womens’ Health Nurse Policy and Procedure Manual. The applicant said that after late 1994 she advised her clients in words to the effect
“I will contact you by letter of your Pap Smear is fine. If not
I will be contacting you by phone.”
The applicant stated that her work practices regarding notification were consistent with those of other women’s health practitioners, as she was able to meet with two other such nurses in the North Coast region and the position was discussed. The court did not hear from those other practitioners.
In 1991 the applicant and other clinical nurse consultants produced a policy and protocol manual. Exhibit 4 was entitled “N.S.W. Women’s Health Nurse Practitioners Policy and Procedure Manual. 1991 - N.S.W. Department of Health”. The applicant did not specify to what extent she assisted with the production of the document. In the Index the topics covered in exhibit 4 are shown to be first the Introduction dealing with Background, Rationale and Philosophy. In “Background” it was stated that the Final Report of the Women’s Health Policy Review Committee, 1985, recommended that:
“the Department of Health, N.S.W. in conjunction with relevant
nursing bodies, establish a new category of Registered Nurse, that is,
a women’s health nurse, to provide gynaecological preventative
health services as well as educational and counselling services
for well women....
The Committee believes that suitably trained nurses are capable
of developing and independent practitioner role in delivery of
preventative health care to well women and that specially
trained nurse practitioners could offer a cost effective and
accessible service for well women....
the lack of easily accessible and relevant information about their
gynaecological health was raised repeatedly by women of all ages
during the community consultations...”
The Rationale on page 3 of exhibit 4 stated:
“The role of the women’s health nurse practitioner was created to fill the gaps identified the provision of gynaecological health care services to well women, particularly isolated or socially disadvantaged groups of women.
Women’s health nurse practitioners seek to address -
* problems of access to appropriate health care
* situations where screening and/or diagnosis has not effectively reached women and
* service provision for women who, for their own reasons, choose not to use existing health services.”
Included in exhibit 4 was a copy of a letter dated 16 April 1987 to All Regional Directors entitled “Women’s Health Nurses” and was signed by J Markham, Division of Industrial and Employee Relations. Inter alia that attachment stated:
2. Role and Function of Women’s Health Nurses:
1. Provision of pap smear screening, referral as indicated including description of follow up services and treatment.
2. Provision of manual breast examination, referral as indicated including description of follow up services...
10. Maintenance of client records and statistics...
12. Monitoring of service needs and provision of regular activity reports..”
The applicant stated that the respondent did not bring exhibit 4 nor the attachment dated 16 April 1987 specifically to her attention, however she agreed the document was a fair articulation of the role she performed. Additionally in exhibit 4 was a 3 paged attachment headed “Part A Self Appraisal” and another entitled “Part C Team Leader Appraisal.”
Also covered in exhibit 4 were the topics of Educational Preparation, the Role and Function of Women’s Health Nurse Practitioners, Service Provision, Documentation and Protocols. Service Provision, section 4, stated inter alia
“4.1 Aims and Objectives..To reduce the incidence of gynaecological cancer deaths in women by providing screening and educational services...To enable women to take responsibility for their own health by making informed decisions as health care consumers...To provide a screening, information and counselling service for women, by women, that is free confidential and accessible.”
Section 5, Documentation, provided inter alia:
“Record Keeping...Records must conform to the N.S.W. Department of Health guidelines and local Area and/or Region protocols - Records are legal documents and must be kept secure at all times - Records must be written in an objective manner, be legible, accurate, succinct and complete - All record notations must be signed and dated - Records should be written at the time of consultation or as soon as practicable thereafter - Only approved abbreviations may be used - Any errors must be ruled out and initialled, - not erased.
It should be remembered that records may be required for evidence in a court of law and are also often used for teaching and research purposes. It is also important to remember a client’s right to access their records when making entries.
Reference is made to N.S.W. Department of Health Circular 86/79, dated 1986 (see Attachment 4). Further reference is made to Staunton P.J., & Whyburn, B. (1989). Nursing and the Law. W.B. Sanders/Bailliere Tindall, Sydney. (ch.9)
5.3 Forms...(c) Pap Smear Register From (WHNP 8) As nurses are accountable for clinical procedures, all pap smears taken must be recorded. The Pap Smear Register form ensures that standardised and readily accessible information is collected on all pap smears attended by women’s health nurse practitioners and enables easy follow up of abnormal smears.”
Section 6 dealt with Protocols and provided inter alia:
“Record all observations and client contact in the client’s
medical record. Observations are to be accurate, concise
objective, and complete. Use diagrams where appropriate.
Writing must be legible. Copies are to be kept in the client’s
medical record of all test results and referring letters to
and from the women’s health nurse practitioner...
(b) Follow-Up Procedure For Pap Smear Results:
* Generally speaking it is desirable that all women are
notified of their results, normal or abnormal. Access to
their own results allows women to keep a record of pap
smear attendances and encourages women to take
responsibility for their own health.
* Each service will need to develop their own system for
follow-up based on local needs. The system developed must
be on e which ensures that women are contacted within the
shortest time possible if further investigation is needed.
* All clients with abnormal results should be notified
as a matter of priority. Local protocols need to be developed
to ensure that all abnormal smears are followed up...”
Protocol 6.3(c) dealt with the interpretation of Pap Smear results and there were 10 different categories of result listed. In each case the protocol stated that the client was to be notified of the result. The applicant told the court during examination in chief she never indicated that she was not bound by the policy that formed exhibit 4. The applicant stated that she agreed that it was desirable that all women should be notified of the Pap Smear results, normal or abnormal and conceded that she failed to notify some clients of results but that she was carrying a considerable work load and working under pressure. The applicant said in her evidence in chief that although she had a hand in formulating the 1991 document and that she agreed with its sentiments, in practice she did not follow its recommendations prior to November 1994.
Directly after the Women’s Questionnaire of Exhibit 4 was Attachment 4 headed “Medical Documentation of Health Records” in Public Hospitals. Point 3.4 of Attachment 4 states:
“Failure to maintain adequate Health Records in patients under a visiting Medical Practitioner’s Care, may constitute grounds for the .......termination of the Visiting Medical Practitioner’s appointment.”
Point 4 of Attachment 4 states
“It is the responsibility of the Regional Director to inspect or cause to be inspected Health Records in Public Hospitals at suitable intervals to ensure that an acceptable standard of adequate and appropriate medical documentation of Health Records is maintained”
The applicant stated that she “never saw” paragraph 3.4 in the Policy and Procedure Manual of 1991 (Exhibit 4). It was the evidence of the applicant that at no time did she discuss notification procedures with either of the area health nurses who relieved her while she was on leave. The applicant agreed that women clients were both encouraged to trust the service and to rely on her services for clinical assistance.
Before going on maternity leave in 1991, the applicant said she sought either additional nursing or clerical assistance and in that regard she spoke to Ms Rajenda Lamont, the team leader, Mr Terry Lowes, and then to his successor, the area coordinator, Mr Russell Begg, the chief executive officer at Maclean hospital and to Ms Maggie Young the regional Women’s Health Adviser. Paragraph 25 of exhibit 1 states:
“I do not recall specific details of those conversations, but I
do recall (I) consistently requested either additional nursing
or clerical assistance.”
In her sworn statement the applicant said:
“I said to Russell Begg: I need help, I need extra resources, I’m
going crazy. He said to me: that my work car fuel bill totalled
at the time my goods and services budget in women’s health. So
therefore there was no extra money to provide for extra resources..
I would say that I continually brought the subject up with both he and
Terry Lowndes that initially they would scoff and have a bit of a
laugh, and words to the effect of: well, here she comes again. And
it became very clear that there was no money. I was belting my head
up against a brick wall and was told of other priorities and that there
was no money within the women’s health budget. That the budget
only provided for one nurse and that’s how it was to be.”
There was no evidence from the applicant that she ever advised the respondent as to the manner in which she notified clients of their Pap smear results, nor of specific difficulties she was experiencing in maintaining her medical records. The applicant returned to work in August 1992 on a full time basis. In 1994 Paul Schofield was appointed as District Director of Nursing and shortly thereafter the applicant alleged that she advised him of the difficulties she was experiencing. That evidence was not supported by Mr Schofield.
Marked as exhibit 2 was a letter dated 30 June 1994 from Westmead Parramatta Hospitals and Community Health Services signed by Dr Richard Jaworksi that stated that pathology services had been reorganised anticipating improved and “more customer focused pathology service.” Paragraphs 2 and 3 of that letter state:
“one of the changes that will be implemented is a change
to our current reporting system. Our reporting style will basically follow the NH & MRC guidelines, however some recommendations for management will vary because of decisions that have arisen from consultations with our expert gynaecologists. Attached is information about our revised reporting format. This style of reporting is currently being used by the Victorian Cytology Service and by some other large pathology laboratories.
One of the categories that we have added to the NH & MRC guidelines is that of the inflammatory smear. Recent studies, as well as our own research, have highlighted the importance of following up women whose only abnormality is persistently inflammatory smear. These women have been shown to have a significant rise of both low grade and high grade epithelial abnormalities when investigated by coloscopy with or without biopsy. It is our recommendation that a woman who has persistent inflammatory smear despite investigation and treatment should be offered colposcopy.”
The applicant agreed that attached to exhibit 2 was the updated reporting system headed “Western Sydney Area Pathology Service I.C.P.M.R. Gynaecological Cytology Unit Reporting System” that indicated an altered reporting system relying on 7 different report categories and corresponding management recommendations. Those categories and recommendations were:
1. Negative. The management recommendation for this category was
“No recommendation will generally be issued. However, if there has been a recent smear a follow up will be recommended. Moreover, if the patient is symptomatic then further investigations should be carried out.”
2. Low Grade Epithelial Abnormality. The management
recommendation for this category was“with non specific minor changes that may be associated with human
papilloma virus or minimal dysplasia, a re-smear in 6 months will be
recommended. Colposcopy will be recommended in those cases in
which the smear is reported as showing human papilloma virus
effect, CIN 1 or both.”
3. High Grade Non-Epithelial Abnormality. The management
recommendation was“A coloscopy will be recommended. Other specific investigations may also be recommended depending on the diagnosis.”
4. Inconclusive. The management recommendation was
“A coloscopy will be recommended [or other investigations if the diagnostic difficulty is easily corrected eg. marked atrophic changes may require treatment with oestrogen then a re-smear].
5. Unsatisfactory. The management recommendation was
“A recommendation will be made in accordance with the reason for reporting this category eg. in cases with excess blood or poor fixation, a re-smear in 6 - 12 weeks will be recommended. If the repeat smear is unsatisfactory the patient should have a coloscopy.
6. Inflammatory Smear. The management recommendation was
“In patients who have prominent inflammatory changes a recommendation to investigate and re-smear will be made. Further investigations may include further clinical history, pelvic examination and swabs for microbiological culture. Some clinicians also specifically investigate for Chlamydia. If clinically indicated these patients should be treated and then re-smeared.
If inflammatory changes persist then colposcopy should be offered as an alternate screening procedure.
7. Smears Which Lack An Endocervical Component. The
management recommendation was“While acknowledging the importance of sampling the endocervical canal the NH&MRC has not made any specific recommendations about what to do when endocervical cells are not present in a smear. Our recommendation will be that a repeat smear should be performed within a clinically appropriate interval taking into account the patient’s clinical and smear history.”
The applicant stated she attended the annual Women’s Health Inservice conference in June 1994 at Queanbeyan. There she discussed with Dr Jaworski the fact that the Pap Smear results from clients in her district revealed a high percentage of inflammatory results. Her statement provided:
“I raised my hand in the conference to ask him what is in
fact an inflammatory smear and we had a general discussion
about the meaning of an inflammatory pap smear and I
indicated to Dr Jawolski that I received quite a number of
inflammatory pap smear results and this caused me great
distress in the fact that these women needed recalling back into
the clinic and I just simply could not fit that in with already
established clinics and it would just seem to be increasing my
workload somewhat and I asked him what I could do about
that...He said to me very clearly that there was (sic) two
categories of inflammatory smear and that the inflammatory
cellular change smear to follow up as per the Westmeadprotocol.”
In her evidence in chief the applicant agreed that Westmead added the category of inflammatory smear to the guidelines issued by the National Health and Medical Research Council (“NH & MRC”) and further stated that as a result of her conversation with Dr Jarworski at the Inservice conference indicated to her that the first inflammatory exudate smear he considered to be a negative result, but that persistent inflammatory smears, being two or more, he considered would need a follow up and then possible referral. The applicant said she did not tell anyone about her conversation with Dr Jaworski involving the changed notification procedures concerning Pap Smear results, and that the reason she did not tell anyone was that she “did not need to tell anyone”. It was the evidence of the applicant that Mrs Marion Johnstone, the women’s health nurse who relieved the applicant from time to time, was at the Health Nurses conference when Dr Jarworski mentioned the topic of changed notification procedures. The applicant agreed that a CIN result from Westmead meant that “any subsequent abnormality would have to be treated with particular care.”
In exhibit 1 the applicant states:
“68. Where a smear was normal a notation to that effect was made
in the client’s file. Prior to late 1994 no notification was made. After
that, a letter was sent to the client and a notation “LS” (meaning
‘letter sent’) was entered on the pathology form. A copy of the result
was sent to LMO if the client had requested it. The medical record
was then returned to the filing system.
“69. Where a result was abnormal and required immediatereferral,the practice was to enter the result in the Pap Register and contact the client by telephone. If the client could not be contacted by
phone within twenty four hours I would go their work or home
or see them, if my workload permitted, or send a letter. A copy of
the referral letter and the result would be mailed to the client, or left
for collection. When I had access to a photocopier, a copy of the
referral letter would be placed in the client’s file.
70. If the result required follow up, rather than immediate
referral, the result would be entered in the Pap Register, and I
would phone the client to discuss the result. If client could not be
contacted, a notation was made in (the) file and (the) medical record placed in a “To Contact” file in the filing cabinet. When time allowed, this whole file would be taken to my desk and a further attempt would be
made to contact each of these clients by telephone. Occasionally, letters were sent asking clients to contact me as soon as possible.
71. My usual practice in dealing with various smear results was as follows:
* Positive Smears, including both high and low grade epithelial abnormality. The client was contacted as soon as possible as described above for referral the Family Planning Doctor or the GP of their choice;
* Negative Smears which required no follow up action were not notified of the result until late 1994. After this time a standard letter was sent.
* Negative Smears with EMA (endo-cervical material absent). No follow up action was taken. These clients were only notified after 1994.
* Unsatisfactory Smear, required a repeat smear and clients were contacted by phone or letter of necessary.
* Inflammatory exudate: Initially these clients were contacted to re-attend for pathology swabs and/or repeat smear. In 1994 I discussed this type of smear result with Dr Jaworski from ICPMR at Westmead an in-service seminar. I indicated to him that many of my smears were “inflammatory”. This proved to a problem as all of these
clients needed to be contacted and referred. This was difficult to do, in conjunction with my already pressed workload. Dr Jaworski indicated to me that to consider “Inflammatory Exudate” Pap Smears as a negative smear, therefore not requiring follow up.
* Inflammatory Cellular Change: Clients with this result were contacted to re-attend for pathology swabs and/or repeat smear. If the Inflammatory cellular change result persisted this client was referred to either the Family Planning Clinic or the GP of their choice for further
investigation.”
Also, in her evidence in chief concerning the practice of the applicant not to notify clients of changed EMA results Mr Kimber put to the applicant:
Mr Kimber: “Could you tell the court again why it was that you changed your practice in the latter part of 1994?”
Applicant: “In consultation with the other two women’s health
nurses in the north coast region, we discussed the issue in the Policy and Procedure Manual 1991 and the three of us decided that: yes, we would make a concerted effort. We felt that, yes, it is desirable that everyone be contacted about their results and that we would endeavour to do our best to do that.” [transcript p 136]
The court did not hear from the other two nurses referred to, nor was there any evidence that the applicant discussed her changed notification procedures with her employer. Accordingly I am unable to accord that statement much weight. Also, in her evidence in chief the applicant stated
“...the category of ‘ inflammatory smear’, there is some great controversy about that and it appears to be a very grey area amongst
the experts...some years ago Westmead Pathology just reported inflammatory smears as inflammatory exudate. In recent times they have split the category into inflammatory exudate and inflammatory cellular change.”
In cross examination the applicant said that she did not explain to the clients who visited the Health Centres that there had been a change after July 1994 in the notification procedure. The applicant said that “even talking with local G.P.’s here in Grafton (they) cannot decide what to do with inflammatory smears”. The court heard from no local general practitioner on behalf of the applicant in that regard.
The applicant told the court she established a professional relationship with the Family Planning Clinic’s Medical Officer Dr Marion Lever. Dr Lever was not called to give evidence at these proceedings and there was no supporting evidence that the applicant ever discussed notification procedures nor her medical record keeping procedures with Dr Lever. It was the evidence of the applicant that in January 1995 she met with Mr Ken Mills the District General Manager and the relocation of the clinic was discussed. Additionally, the applicant said that lines of management were discussed and it was suggested that she contact Dr King in that regard. The applicant said she made a submission to the National Women’s Health Program for money for extra positions to help her with her job and that she wrote the submissions with the assistance of Mr Colin Pritchard, the team leader at Grafton, and Dr Michael King.
Exhibit 6 was a submission dated 5 January 1995 that the applicant made to Dr King that stated inter alia:
“To eliminate further confusion and disorganisation between Women’s
Health, Community Health, and the Hospitals and following discussions
with you, I would like to propose the following solutions:
1. That the Clinical Nurse Consultant/Women’s Health Nurse
become the Team Leader of the Women’s Health, Family
Planning Service, and attend Team Leader Meetings at
Grafton Community Health.
2. That the Team Leader Women’s Health be directly responsible
to the Team Leader - Community Health Grafton - Mr C
Pritchard: and then to Dr M King Director of Clinical and
Community Services....
I am confident following discussion with you and Mr K Mills that these changes to the management of the existing service will eliminate extra strain and stress on an already very busy customer focused based service.”
I unable to place weight on exhibit 6 as I find it refers to a proposed chain of command and does not specifically deal with the notification nor the documentation problems the applicant apparently was then experiencing. In her evidence in chief the applicant stated that whilst based at Grafton Hospital she requested two staff located in the Community Health Centre for clerical assistance and her request was denied. There was no evidence that the applicant advised her team leader that her request for assistance had been denied by other staff and so I am unable to place much weight on that evidence. In her evidence in chief the applicant agreed with a statement by her employer made in a letter to her union dated 10 April 1996 that “Subsequent to the review in March the only request for clerical assistance made by Mrs Ison was to type her annual report.”
The reason given by the applicant for her not persisting with her request after March 1995 was “It became very clear to me, as I said earlier, that when my resources moved from Maclean to Grafton that it was made very clear to me
that clerical assistance was not and would not be available.”
In light of this evidence proffered by the applicant and the evidence of Mr. Schofield on behalf of the respondent it is the finding of this court that the applicant did not seek assistance to complete her clerical tasks nor did she let the respondent her employer know that her perception of the alleged deficiencies in clerical support services was responsible for her failing to notify clients of the exact position concerning pre-cancer checks.
In March of 1995, it was the evidence of the applicant that Denyse Hodgson came from Lismore to conduct an appraisal of her work practices. The day of the appraisal, it was the evidence of the applicant that there was very little time for face-to-face discussion. In the words of the applicant:
“She (Denyse Hodgson) requested copies of policy and procedure
documents which I was unable to provide, because these were all
located in Maclean. I did not feel the day was adequate at all.
The Team Leader section of the appraisal was not done, because
Madge Brown did not think it appropriate she do it. My previous
Team Leader (of 7 years) at Maclean, Ragender Lamont, was not
invited to do so. I was unable to complete the Self Appraisal...
I identified with her local protocols that I believed needed to be
written and accepted by the District, eg a Pap Smear notificationprotocol.”
The applicant’s appraisal by Denyse Hodgson was dated 21 March 1995 and was attachment B to exhibit 1, the applicant’s statement. The appraisal was critical of the applicant’s notification techniques and stated:
“Clinical Protocols from the NSW Women’s Health Nurse Practitioners
Manual from the basis for the functioning of the clinic. However there
are gaps in documented local protocol for following-up pathology
results i.e. is every result notified to clients or only those with an
abnormality?. how? i.e. phone or pro-forma letter, role of receptionist
in giving results? medical officer viewing results?...I would also
recommend an annual staff appraisal and quality assurance
program...Professional supervision and support appears to be lacking for this position and I would recommend that Fiona has access to supervision for debriefing, case management and support.”
The applicant stated that she agreed with the appraisal After receiving the copy of the appraisal by Denyse Hodgson, the applicant was requested to attend a meeting in the office of Paul Schofield the and that at that meeting the applicant felt Paul Schofield was critical of her work. In her evidence in chief the applicant said at that meeting she asked for one full day a week to do paperwork and that Paul Schofield had said “There was obviously no paper work problem”. That evidence was unsupported. In paragraph 51 of her statement the applicant said inter alia:
“When I requested information about standards and the Clarence Health Service expectations, he responded that I wanted to be spoon fed. I recall statements made by him during the interview to the following effect:
* I have seen no impact from you with Women’s Health.
* People see you driving around town.
* We can employ an EN to do what you do at Family
Planning Clinics.
* Goal clinics were not required.
* You’ll do as you’re told, if not you’ll be hearing from me.
* You cancel clinics to attend NSWNA meetings.
* You’ve got friends in high places in NSWNA...
53. Paul Scofield also stated “You accrue hundreds of hours of
time-in-lieu,” and “You don’t notify people of their results.” When
I requested details regarding notification to find out where my reporting
process had fallen down, he refused to tell me for, he said, reasons
of confidentiality.
54. A work plan was given to me at the end of the meeting, and I was told: “You will follow it or you will be hearing from me.”
In regard to the recounting of what took place at the meeting on 27 April 1995 I prefer the evidence of Mr Schofield and doubt the credibility of the applicant, as few of the items outlined by her were shown to have had a basis in fact.
The applicant stated she was then “summonsed” to a meeting by Madge Brown on 1 June 1995 and in attendance was the relieving women’s health nurse, as the applicant was due for maternity leave from 7 July 1995 for 12 months. There was no evidence to suppose the respondent was aware at that meeting that the applicant had departed from what were the notification standards set in the various protocols in existence and that she had substituted her own standards. Attachment A to exhibit 1, the statement of the applicant, was a report produced by the applicant concerning her work for the respondent. It had not been the practice of the applicant to produce such a report previously, and the report showed the volume of work handled by the applicant. For the purposes of these proceedings I am unable to give weight to Attachment A to Exhibit 1. It is acknowledged the applicant had to manage a logistically difficult occuaption, but exhibit 1 does not deal with the issues before the Court with regard to the reasons for termination.
The court heard evidence of a file headed “To Contact” which contained pathology reports requiring client notification of pathology results. The applicant said that it was not until she went off on maternity leave on 7 July 1995 that she had feelings of disquiet concerning the fact that there might have been clients who had not been notified of their pathology results. The court heard evidence that the applicant also maintained files headed “Lost Reports” and “Lost Files”. There was no evidence of a thorough tracking system recording either reports or files that were unable to be located, nor a separate record of clients who were unable to be contacted to be advised of their results.
In cross examination the applicant agreed that she knew that that the maintenance of records was a necessity but that she “did not read” that failure to maintain visiting medical officer records was a ground for termination [3.4 of exhibit 4]. Further the applicant agreed that on occasion women attend the Women’s Health Centre to the exclusion of other medical services and that a Pap Smear is no good without the result. The applicant accepted that in a number of cases clients who came to her in her capacity as Women’s Health Nurse for correct information concerning Pap Smears were not given the information they should have been given.
On behalf of the respondent the court heard from Paul Schofield the District Director of Nursing and Customer Service employed by the respondent. It was the evidence of Mr. Schofield in relation to the term Sole Practitioner that the phrase was used in relation to a nurse as being an expert, a nurse who was used as a “resource person”, who acts on isolation or on their own providing certain specific services with no medical officer working alongside them. Mr. Schofield said that after the appraisal of the applicant by Denyse Hodgson the respondent experienced considerable difficulty obtaining certain documents from the applicant in order that the appraisal could be completed. The delay of the applicant lends weight to the conclusion the applicant was aware of defficiencies in her notification practices and sought to delay completion of her appraisal. Her actions in this regard lead to the fact that the applicant may have lacked bona fides when she sought an appraisal of her performance. It was the evidence of Mr. Schofield that he had been on the executive of the Clarence Area Health Service since January 1994 and since that time to his knowledge there had been no application made by Mrs. Ison for additional clerical help to assist her with her job.
The Court heard from various women clients who had sought professional help from the applicant at the Women’s Health Clinic and exhibit 10 and 10A listed the names of those women and a corresponding reference number. Those numbers will be adopted in the examination of the evidence.
Client 23A in her evidence in chief told the court she first attended the Women’s Health Clinic in April 1994 and at that time the applicant performed a Pap Smear. The witness was at all times employed by the respondent as an Enrolled Nurse. At that time in April 1994 the witness took with her exhibit F, being a letter dated 16 May 1986 from her specialist gynaecologist outlining her previous history that stated inter alia client 23A had been treated in 1983 for a CIN lesion of the cervix using radical diathermy, and advising that any recurrence of abnormal smears would need to be investigated by colposcopy. Client 23A said that at the time she attended the clinic the aplicant told her that she would be notified “either way” of her Pap Smear results if there was something abnormal or that she would get a letter in the mail. Client 23 A said she heard nothing from the applicant and that an Enrolled Nurses Conference in November 1994 she asked the applicant about her Smear results and the response was that the applicant “would get back to her.” After that time 23A said on two occasions she telephoned the applicant and left messages seeking her results. Client 23A made a further appointment in March of April of 1995 for another Pap Smear. That appointment had to be cancelled for family reasons. On 21 June 1995 Client 32A attended the clinic and had a further consultation with the applicant and said words to the effect “About my last smear Fiona” and she said “it was fine”.
At that time the witness was told the same procedure would apply - that if there was a problem the applicant would contact her personlly and that otherwise notification would be via letter. Client 23A said on or about 6 July 1996 Nurse Marion Johnstone telephoned her and said “ Your smear’s come back inflammatory and it suggests that you - to see a gynaecologist.” The witness visited her own general practitioner and as a result went to the Grafton clinic and collected her Pap Smear results for 1995. Those results allerted Client 23 A to the fact that there had been a problem with the 1994 smear. The client made contact with Mrs Madge Brown, who read the 1994 result out to her over the telephone. The witness said she was horrified at what she learned, and promptly visited her own gynaecologist and had treatment. Client 23 A stated that she could not understand why she had not been notified of the 1994 results and so she complained in writing to the respondent. That letter of complaint is anexure E to exhibit 1. Client 23 A spoke to Mr Schofield who was apparently supportive and advised an investigation would be commenced. Reference was made to litigation instigated on behalf of Client 23A against the hospital arising out of the actions of the applicant and which was apparently settled. Exhibit M was a contemporaneous note made by Mrs Madge Brown when she was contacted by client 23A, that supports the client’s version of events. I found client 23 a credible and reliable witness.
It was the evidence of the applicant that in April of 1994 she attended client 23A. That client advised the applicant of her earlier Pap smear history. The applicant admitted that she made no record in the files that a colcoscopy was needed to be performed on client 23A. The applicant told the Court that she accepted the proposition that she did not contact client 23A after the April 1994 visit, although she tried to. However it was the evidence of the applicant and that for the remainder of 1994 client 23A did not know her Pap Smear results. In her evidence in chief the applicant said she could provide no reason why client 23A was not notified of her April 1994 result. Further, that it was only her practice after 1995 to send a letter or to make a phone call on all occasions notifying of the results. The applicant said that the repeat attendance of client 23A at the clinic for a further check up would have been at the instigation of the client herself. It was the evidence of the applicant that the records maintained
“suggest that 23A did not come in April/May of 1995, that that appointment was cancelled, and that the only time the applicant saw her was on 21 June 1995... I did not see her in April or May, I saw her in June.” “Yes. What Mr Schofield’s repor says is correct. As I have documented, the examination warranted further discussion.”
It was put to the applicant that Paul Schofield would depose that the applicant at that time told client 23A that everything ‘was fine’. The applicant denied that she said that and that the records as maintained by her reveal that client 23A ‘should have been notified’ of the Pap Smear results. The applicant said that she would not have ignored the results forwarded by Westmead concerning the 1994 test of 23A, but that she could not recall a conversation with client 23A at the Enrolled Nurses’ Conference. With regard to the seriousness of the issues at stake coupled with the certain fact that the applicant would have been more than aware of that seriousness, the actions of the applicant in the whole of the matter relating to client 23A lead to the conclusion the applicant was derelict in her duty to both the client and the respondent.
In relation to client 23A, Mr. Schofield said that he interviewed the client shortly after the client had learned her Pap Smear results and the court heard evidence that the client was extremely emotional and was of the opinion that “she was going to die”. Mr. Schofield stated that a file review of the applicant’s clients was immediately conducted at the direction of Dr Michael King. As a result the respondent found there was 78 files from the Womens’ Area Health Service exhibiting poor documentation. The report to the general manager as to the file review formed part of exhibit 9 was divided into 3 parts, the complaint by client 23A (Part A), the inadequacy of the Medical Records kept the applicant (Part B) and an analysis of the records of clients who allegedly were not told of their abnormal Pap Smear results. In relation to Part A, the report of the respondent indicated that the letter from client 23A was discussed with the applicant on several occasions. With regard to Part B Westmead cytology was contacted by the respondent to provide a list of abnormal smears reported and the period covering October 1993 until May 1995. It was discovered that as a result of the respondent contacting those clients, 22 women advised that they had never been advised about their Pap Smear result or the need for a re-smear. In relation to the applicant’s variation of 1991 protocol Mr. Schofield said it was found that the applicant was not following the 1991 protocol and the comment on behalf of management was in Exhibit 9 “no one else had any idea as to what or where this protocol came from.” It can be concluded from the evidence before the Court that upon conducting the file review the respondent became aware for the first time of the applicant’s own personal variation of the 1991 protocol. It has to be remembered both applicant and respondent conceded the applicant was employed at the highest level of clinical nurse consultant, that she operated autonomously as a sole practitioner. It is a finding of this Court that the applicant should have self- administered and followed the notification protocols put into place by the Health Department. To require the respondent, being the employer of such a highly skilled employee, to specifically draw that employee’s attention to basic detail of client notification is not compatible with the terms and conditions of the applicant’s employment. That finding is borne out by the words of the applicant when she told the Court she did not discuss her alleged conversation with Dr Jaworski with anyone “because she did not think that she had to.”
The court heard from client 23 who stated she was a specialist health worker at a senior level employed by the respondent at Grafton. The witness stated it was her practice to have regular Pap Smears but that she did not know the applicant before the Women’s Health Service opened. In March 1994 client 23 had a Pap Smear done by the applicant. Client 23 received no notification from the applicant as to her results. In August 1994 Client 23 received a letter from the Cancer Council concerning those results and accordingly the client attended the applicant’s clinic for another smear. At that time in August the client received the results of the Smear performed in March 1994. The client told the applicant she was not happy with the manner in which the matter had been treated and that in her role as a provider of clinical functions those functions received a priority over other matters such as general information sessions and educational talks. I found client 23 a credible and reliable witness. Exhibit 9, the respondent’s enquiry states the applicant maintained that Client 23 was advised of the Pap Smear results in April 1994. On the evidence before the Court it is a finding that Client 23 was not advised of her results until she received notification from the Cancer Council to undergo further treatment.
The Court heard from client 16 who stated she worked in an office and that she had been a client of the Women’s Health Service for some 2 years. Further, that the applicant was a particular friend. In September the witness had a Pap Smear, and then a second one in November. The second smear came about as on 7 November 1995 she was watching the Jacaranda Festival when she met the applicant and was advised that there were “cells showing in the smear”. The client was subsequently advised the second smear was clear. The Court heard no evidence as to what procedures the applicant would have adopted if she had not met with the client whilst watching the festival. I found client 16 a credible and reliable witness.
Client 5 said she had used the women’s health service twice in the past 2 years. In 1995 the witness heard a television news item concerning Pap smears and the Grafton Area Health Service and that she was subsequently contacted by Ragenda Lamont in August of 1995 who advised the last smear the witness had undergone was not satisfactory. Client 5 confirmed initially she had a smear in December of 1994 and that she had not been notified of those results. The client said that if the results at that time indicated something was wrong it was her understanding that the clinic would contact her, and that no contact meant that all was fine. After the telephone call the witness had a further smear and Nurse Marion Johnstone said that either way she would be advised of the results. In her comment on exhibit 9, being the respondent’s report on the file review, the applicant stated that Client 5 was advised of her negative result. The applicant did not respond to the statement of the respondent that there was no documentation on the client’s file.
The court heard from client 13 who stated she had been a client of the Women’s Health Service for some 3 years and that she had been attended by the applicant. The witness said she received a telephone call from someone at the Women’s Health Service and was advised that some of the Pap Smear results were missing, and that she should attend for another smear in 6 months. The substance of the evidence from this witness was that she had smear in June 1995 and was notified in August 1995 that she needed to re-attend for another smear within 6 months. The notification telephone call was not made by the applicant. I found the witness to be credible and reliable.
The court heard from client 18 who stated she usually attended the Women’s Health Service at one of its outreach centres. The first attendance of the witness was in December 1994. In August 1995 the witness was contacted by the respondent and advised that she had had an abnormal smear result and that she should re-attend for a repeat smear. Client 18 said she had forgotten about the Pap test as she was not notified and that accordingly she assumed that the results were clear. It was put in her evidence in chief to the witness that the medical records of the respondent showed that the applicant tried to contact her by phone on two occasions, first on 21 December 1994 and then on10 January 1995. The witness had no knowledge of those attempts and stated she did not receive a letter from the respondent in that time.
The Court heard from client 19 who stated on 4 occasions she had attended the Grafton clinic. On 16 March 1995 the witness had a Pap Smear at Grafton and that prior being contacted by Mrs Marion Johnstone she had received no notification of her results. Mrs Johnson told her to come back to have another smear. The witness did re-attend and had a consultation with the Family Planning doctor, Dr Lever, who performed another Pap Smear. At that time Dr Lever remarked that the witness “should have had treatment earlier.” It was the evidence of the witness she had to undergo further treatment.
It was put to the witness that the records maintained by the respondent at the Womens Health Centre (the applicant) showed that the witness was booked in for a Pap Smear on 16 March 1995, and that the records revealed that she was booked in for a re-smear on 3 April 1995. The witness said she had no knowledge of that and that she had only learned of those bookings at the day of the hearing. The witness assumed there was no problem with her Pap Smears as she had not heard anything from the applicant concerning her results.
Client 21 told the court she had been attending the Women’s Health Service for some 4 years and that she had been attended to by the applicant only on the one occasion. The witness had a Pap Smear on 3 August 1994 at one of the outreach centres and that it was her understanding that she would not be notified of the results unless something was wrong. 12 months later Client 21 had a further smear, administered by Mrs Marion Johnstone, and at that time she was advised that there would be notification of the Pap smear results.
As a result of the file review of the applicant’s files regarding the Health Centre’s women clients, Mr. Schofield wrote to the applicant on 17 August 1995 requesting her response to a number of issues relating to notification of Pap Smear results and record keeping. That letter stated:
“This letter is to formally advise you that an investigation into your conduct and performance as Clinical Nurse Specialist in Women’s Health with the Clarence Health Service has been commenced.
The investigation was instituted following complaints from a client that you had failed to notify her of her abnormal Pap smear result. An investigation of records kept by you, and follow-up of other clients for whom abnormal results had been received, suggests this was not an isolated case. Furthermore, the review identified serious shortcomings in your record-keeping.
Accordingly, you are required to respond to the following issues:
Why did you fail to notify client 23A of her abnormal Pap smear, despite her asking you for the information on three occasions?
Why did you subsequently tell her that her result had been normal?
A further 22 clients of the service for whom abnormal smear results were recorded state that they were not advised of their test results. How and why did this occur?
...4 files relating to abnormal smear results are missing... No files can be located for ...these women. Where are the missing files?
The review of records has found that record-keeping has not been at an acceptable standard. In particular:
In 78 cases there is no documented evidence of follow-up of abnormal smears or of referral on to the Women’s Health Medical Office or the client’s own general practitioner.
..in at least 22 cases in which there was a recommendation for repeat
cytology there is no documented evidence as to what action, if any, wastaken...”.
Verbal contact takes place between Mr Mills, the General Manager of the respondent and the NSWNA, with the result that the time for reply was extended to 13 September 1995. On 18 September, no reply having been received from the applicant, the respondent wrote to the applicant asking for confirmation that her response would be received by 20 September 1995 (exhibit S). The applicant responded by letter dated 21 September 1995 that stated inter alia that the services she provided during 1994-1995 consisted of consultation with some 913 women, 3741 occasions of service including 504 Pap Smears, with no clerical or auxiliary support being provided. Further, the applicant said that a peer appraisal was carried out in March 1995 which identified a lack of documented local protocols on the part of the health service as a need to be addressed. I am unable to place weight on the sentiments expressed by the applicant there as the poor recording and reporting had been occurring prior to the times referred to by the applicant. There was no evidence that “local protocols” would have varied the basic standard as set out by the Health Department in 1991 and reinforced by Westmead in 1994 as to the notification of Pap Smear results. It can be assumed that local protocols would only affect the manner of notification, not the responsibility of the medical provider.
The applicant was invited by letter dated 19 October 1995 (exhibit T) to meet and discuss the matter further, and at her request the meeting scheduled for 3 November 1995 was delayed. The New South Wales Nurses’ Association replied by letter dated 29 November 1995 on behalf of the applicant wherein details of client complaints and the applicant’s responses to criticisms were set out. Exhibit V was a letter dated 7 December 1995 from the respondent to the applicant agreeing to postpone the proposed meeting until 11 am Wednesday 13 December 1995 in order to give the applicant further opportunity to prepare any response she may wish to offer to the original letter of 17 August. Again the applicant was advised that the matters were considered to be sufficiently serious to warrant disciplinary action. A meeting took place on 13 December 1995 at Grafton Hospital, wherein a transcript was made which is attached to the statement of the applicant. As a result of that meeting a report (exhibit 9) was prepared by the respondent and forwarded to Mr K R Mills. Marked as exhibit 11 in these proceedings was the letter of 21 December 1995, being the letter of termination to the applicant signed by Mr K R Mills as General Manager for the respondent that stated inter alia:
“I am satisfied from the evidence presented to me that your performance
has placed the health and well being of clients in jeopardy and has also
exposed the Clarence Health Service to the possibility of litigation.
Furthermore your standard of record keeping has been unsatisfactory.
...you are given four week’s notice. You will not be required to work
our this period.
Pleas note that this matter has been referred to the Health Care Complaint Commission for their further assessment.”
A copy of the report was forwarded to the applicant via a letter dated 10 April 1996 (exhibit 9) to the applicant’s representative and stated inter alia:
“While it is certainly the case that the non-notification of her pap smear result to Client 23, (and indeed the subsequent inaccurate service to
Client 23, which you do not mention in your letter), all of those matters set out in Mr Mills’ statutory declaration are matters which are relevant to the proceedings in the Industrial Relations Court of Australia. For example, you will recall that while we are aware of some 78 instances of a lack of document evidence of follow-up of abnormal smears or referrals, we provided you with 20 examples for checking at your request. This does not mean that we were and are not concerned about each of those 78 instances.
Further, while the Service did rely on the non-notification of results to 12 clients and the non-notification of the need for a re-smear with respect to 5 clients, we expressly advised Ms Ison that we were not satisfied that in any of the 22 cases of complaint we had received that clients had in fact been correctly notified.”
Marked as Exhibit X was a Manual for Community Health Facilities dated October 1991. That document set out the procedures of keeping health records, noting the medico-legal aspects of medical records. Point 9.7.5 noted that Women’s Health was a Special Purpose Community clinic and that basic requirements should be present in such files, in addition to any approved forms specifically designed. It was the evidence of Mr. Schofield that the document was a document created and produced by the Department of Health being guidelines to encourage local medical facilities to develop their own policies and procedures. Copies of this document was placed so that community health staff should know what they should have in their medical records and how such records could be kept.
The court heard from Mrs. Madge Brown who stated that her usual position is that of Nursing Unit Manager. Mrs. Brown has been registered nurse for some 22 years and has completed the Unit Managers Course at the College of Nursing. Apart from a short time the witness had no direct Women’s Health Nursing experience. So that she may understand the work involved the Court heard evidence of the specialist women’s health nurse practitioners contacted by Mrs. Brown. Mrs Brown confirmed that on 10 July 1995 she had a discussion with client 23A and that she then carried out a preliminary inspection of the applicant’s files, and that she first checked her own file relating to her personal attendances at the Clinic. Other women clients who gave evidence in these proceedings did so with the protection of anonymity. Mrs Brown is not able to be so protected. I have examined the transcript and find that in relation to the treatment and notification of Mrs Brown’s results and the manner in which Dr Lever was involved, the applicant displayed a most cavalier attitude without regard to her professional obligations. In relation to the report carried out by Ms. Brown in connection with the applicant’s records and other clients, it was stated to the court that Ms. Brown had difficulty in trying to work out the system followed by the applicant, as the medical records were loose, in manilla folders not attached to any particular thing so that documents could easily fall out or be misplaced. It appears the applicant had several different databases. Mrs. Brown said that at the time she produced her report as to the examination of the applicant’s procedures of notification she did not know that all clients were not being notified of their results.
The evidence of Mrs Brown supported the evidence of client 23A. It was a recollection of Mrs Brown that approximately 20 clients contacted by her had not been given the results of their smear tests. Exhibit N was a patient notification protocol draft by Mrs. Brown (page 519 of transcript). In her evidence in chief the witness stated that the time she produced this document, that was August 1995 there was no other local policy concerning notification for the Women’s Health Service of which she was aware.
On behalf of the respondent the court heard from Mrs Marion Johnstone, a women’s’ health nurse employed by respondent. The witness stated that she had worked with the applicant on a number of occasions and that the essence of a Pap Smear is to pick up minor abnormalities that can either be followed up or treated to prevent a higher degree of abnormality occurring. Mrs Johnstone said
“and that is what we teach women when we do education about having a Pap smear done, that there is not a result just saying positive or negative, yes you have got cancer or you haven’t, it is to pick up a minor abnormality”.
Mrs Johnstone continued (transcript page 590)
“My understanding was that all women should be notified of their results, normal or abnormal, and in abnormal results they should be notified and appropriate steps be taken following that it should be discussed with the client”
In cross examination the witness stated that she felt herself bound by Exhibit 4, the 1991 manual and that she would have failed in her duty of care had she failed to tell a patient about an abnormal result. In relation to the degree of supervision the witness stated that Women’s Health Nurses are autonomous in that they create their own clinical work loads and their own Education and Health Promotion work loads with very little comment from employers. Mrs Johnstone said that as Community Nurses they were sent out as sole practitioners to provide a clinical role of screening women for Pap smears in the community, that in some quarters there was resistance from the medical profession as this was seen as an encroachment upon that traditional role.
Mrs Johnston stated that she understood an “EMA” result with regard to the policy meant that a repeat smear had to be undertaken at the appropriate interval from approximately 4 to 8 weeks. Further that the should client be contacted and advised that a repeat smear was needed. If a result came back saying inflammatory cellular change Mrs Johnston said that she would contact the client and that she could not imagine any circumstances when it would be regarded as unnecessary to notify a client of inflammatory cellular change. Further it was the evidence of the witness that most inflammatory smears would say “investigate and re-smear” or “treat if necessary and re-smear.”
The witness was shown Exhibit 2 and stated that her view in respect of results which said inflammatory exudate had not changed as a result of that document being circulated to her. That meant that the witness would contact the women to come back to perform a repeat smear at a specified interval. In cross examination it was the evidence of the witness that a negative smear with inflammatory exudate present was “a grey area” and “one that we often discussed and the general consensus seemed to be until we are actually told no you don’t (recall them), that we should recall them.”
With regard to the NH and MRC guidelines which came out in late 1995, the witness agrees that inflammatory exudate results were only required for a repeat smear after 2 years. Mrs. Johnstone said that she discussed that change with the Family Planning Doctor, Dr Lever who stated that she did not feel one hundred per cent happy about it so that a local policy was put into place providing for such women with that result were recalled within the first 12 months. A result that said “HPV” or “Dysplasia” meant that the witness would contact the clients straight away. It is important to note that the witness stated she had no difficulty in notification of results to the various clients that attended the clinic. Further from August to December 1993, the witness had the full functions of being Women’s Health Nurse, the Outer Regions Clinics and other matters and still found adequate time to deal with the notification issues. Nurse Johnstone stated that notification was a priority with regard to her allocation of time. The court heard evidence of a Health Promotions Worker being employed 3 days a week under the jurisdiction of the Nurse Unit Manager and that the responsibilities of this person was to go into committee meetings and forming women’s groups. It was the view of the witness that that was something that she would not normally do.
With regard to client 16 it was the evidence of Mrs Johnstone that she telephoned this client on 7 August 1995 and at that time she would have had a copy of that client’s file in front of her. Mrs Johnstone said that she had noticed at the time that the client had indicated she was not aware of a need for a repeat smear. Mrs Johnstone that 2 inflammatory results in a row usually means a colposcope is recommended as there is a reasonable percentage known that this can actually have a underlying high degree of abnormality.
It was the evidence of the witness that towards the end of 1992 after she had relieved the applicant for some 10 months the applicant returned to work and said that there was insufficient time to actually notify people of normal results and that “women did not really expect it because the doctors didn’t notify them as well.” However with regard to the notification of other results the witness stated it was her clinical responsibility to find the time to notify the clients.
When Mrs Johnstone relieved as a women’s health nurse at Kempsey and the Central West she adopted the same procedure “letters to everybody with normal results, and either telephone or if not available by telephone, a letter for contact for anything abnormal.”
With regard for typing assistance when the witness was relieving in 1992 and 1994 she went to the clerical staff at either Maclean or Grafton for assistance. Ms. Johnstone could not recall ever having being refused clerical assistance by the staff in relation to sending out pro-forma letters advising of Pap smear results. It was the evidence of the witness that she was basically following either the philosophy of her training as to what she thought was an appropriate practice towards notification of Pap Smear results or the philosophy of the Women’s Health Nurse Movement or the recommendations of the pathology report. I found the witness’s approach to the discharge of her responsibilities to be thorough and appropriate. There was no evidence that Dr King, during the course of a file review found any difficulty with the manner in which the witness performed her duties.
CONCLUSION
The reason for the termination was that the applicant failed to notify clients of their Pap Smear results, that she failed to keep proper records in that some records were not there at all and again others were incorrect. Mr Kimber argued that if the respondent had conducted an appraisal of the applicant’s performance her deficiencies would have been discovered. That may have been so but the carrying out of an appraisal by the respondent would not have relieved the applicant of her responsibility to the clients of the respondent. The primary responsibility of the applicant is the core of the matter before the Court, and the degree to which the respondent should accept responsibility, if any, for the manner in which the applicant performed her duties.
Having considered the protocols in place at the time, particularly Exhibit 4, and the direct relationship between the parties and the Department of Health, it is a finding of this Court that the applicant would have been more than aware of her direct and personal responsibility to both maintain correct and current medical records, and to notify women clients of health-threatening Pap Smear results. Further, that that obligation fell directly to her. The evidence shows that in addition to not following the set protocols, that on occasion the applicant failed to follow her own methodology regarding notification procedures. Mr Schofield described a sole practitioner is one who works unaided, without the assistance of another medical office alongside. It is my view that implicit in that definition is the understanding that the sole practitioner would be capable of applying all relevant regulations and requirements pertaining to the particular profession, and in that regard the applicant should have been capable of maintaining a correct filing system, with due attention paid to the correct recording of pathology results. The evidence did not bear that out. The Court heard evidence of files entitled “lost files”, “lost reports” and “to contact”, illustrating a less than professional approach to the serious responsibility personal to her.
Additionally the Court heard no evidence that the applicant was capable of according priority to vital parts of her work, a task that is implicit when someone such as the applicant works as a sole practitioner. It is a finding that the position of women’s health nurse position was created as a “sole practitioner” type position without any specifically assigned clerical or other administrative assistance. It was the evidence of the applicant that she operated as a sole practitioner, in an autonomous fashion. Accordingly the respondent was entitled to rely on the expertise and competency of the sole practitioner that the clerical and administrative tasks would be attended to correctly. The protocols of notification and record keeping were put into place by the New South Wales Department of Health. The applicant and the respondent were provided with copies of those protocols and each party understood that the Department’s protocols were to be followed. It cannot be asserted that because the respondent failed to take time to draw the Department’s protocols and clerical standards to the attention of the applicant that there was a failure on the part of the respondent, bearing in mind the level at which the applicant was employed to perform her duties. There was evidence before the Court that the Department encouraged local areas to put their individual protocols into place concerning the functioning of the women’s health nursing service. There was no evidence that such local protocols would be without the knowledge and consent and approval of the overall area supervisor/co-ordinator. I reject the submission of the applicant that somehow the applicant could be excused for the standard of her record keeping as she was never counselled or warned at any time about the adequacy of her documentation.
Victor Eshak & Australian Rail, Tram And Bus Industry Union V Public Transport Corporation (Matter No VI 2111R of 1994 - Marshall J Melbourne, 30 August 1996, unreported) is relevant here. In that case Mr Eshak was a tram driver and a tram he was driving collided with the rear of another tram. The applicant was dismissed from his employment. At the hearing of the application for a remedy in respect of an allegedly unlawful termination it was conceded by the applicants that the respondent terminated the employment of Mr Eshak for a valid reason. The issues before the Court in that case were whether the dismissal was harsh unjust and unreasonable. However in his judgment Marshall J stated:
“The circumstances of the collision and consequential injuries and damage to the general public and staff of the respondent are set out in the agreed facts document quoted from earlier in these reasons. The concession of the applicants on the issue of valid reason for the termination must also be considered in assessing the circumstances which led to the decision to dismiss. It must be borne in mind that Mr Eshak, when entrusted with the safety of members of the general public, betrayed that trust by driving his tram in a negligent manner and causing approximately forty people to be injured, some critically. ...
The respondent has a duty to provide a safe public transport service. It has a vital interest in ensuring that its employees keep safety as a paramount consideration in their minds when carrying out their duties. The employer also has an interest in maintaining the integrity of the disciplinary processes to which it is a party.”
The precedent is relevant to the case of Mrs Ison as with the case of Mr Eshak the respondent, the Clarence Area Health Service, also provided a vital public service. Both Mrs Ison and Mr Eshak were entrusted with the safety of members of the general public. Both employees betrayed that trust and put the public at risk. In the case of Mr Eshak on the matter of the negligence valid reason for termination was conceded. Mr. Schofield told the court that the standard for nurses with regard to practice is the best which can possibly be done by the nurse in the circumstance. It cannot be said that the standard of professional care provided by the applicant was the best she could possibly have provided.
In Julie Breen v Cholmondeley W Williams (High Court of Australia, 6 September 1996, unreported) the Court dealt with the right of a patient to access his or her medical records and the patient’s proprietary right or interest in information contained in those records. Although the case deals with the responsibilities of a doctor (the respondent) towards his patient (the appellant), it is my view that the particular circumstances wherein medical assistance was provided to the respondent’s clients by the applicant Mrs Ison make the remarks of Brennan CJ relevant. His Honour said:
“In the present case, there was no formal contract between appellant and the respondent. No more appears than that the appellant consulted the respondent as a medical practitioner and he provided medical services accordingly.
In the absence of special contract between a doctor and a patient, the doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care. The consideration for the undertaking may be either a payment, or promise of payment, of reward or submission by the patient, or an undertaking by the patient to submit to the treatment proposed. A duty, similar to the duty binding on the doctor by contract, is imposed on the doctor by the law of torts. The advice and treatment required to fulfil either duty depends on the history and condition of the patient, the facilities available and all the other circumstances of the case.
Having considered all the evidence it is a finding of this Court that the applicant Mrs Ison had access to sufficient facilities to enable a better standard of client notification to be maintained than the one she in fact maintained during the course of her employment. A review was conducted by the respondent of a large sample of files. No evidence was produced indicating other women’s health nurses failed as the applicant did to meet the standards set in the various protocols. His Honour continued:
“The provision of advice and treatment with reasonable skill and care may not exhaust the duty of the doctor. Unless the contract between doctor and patient is especially restricted, the doctor’s obligation is to maintain or improve the health of the patient generally and to use reasonable skill and care in doing so, even though the advice or treatment required on a particular occasion is in a specialist field or is to be provided only on that occasion or for a limited time. The patient may be thought of as made of many parts some of which may need treatment at a given time, but the patient is nonetheless an entirely whose life spans, or hopefully spans, the ills or disease of each moment. Once it is perceived that the duty of the doctor is owed to the patient as an entirety, it is to appropriate to assume that the duty is discharged merely by the giving of advice or treatment on the particular occasion.
In some situations, there may be a duty to provide to the patient or to the patient’s nominee information which the doctor has acquired in the course or for the purpose of advising or treating the patient. This information received or otherwise acquired by the doctor pursuant to an authority given - expressly or impliedly - by the patient for the purpose of enabling the doctor to perform the doctor’s contractual duty to maintain or improve the health of the patient generally. Absent the patient’s permission, the doctor must not use that information for any other purpose. When the future medical treatment or physical or mental wellbeing of a patient might be prejudiced by an absence of information about the history or condition or treatment of the patient or an earlier occasion, the doctor who has acquired that information for the benefit of the patient’s health must make it available to avoid or diminish that prejudice. Such an obligation is implied by the doctor’s acceptance of the patient’s authority under the contract to obtain that information. the authority is given in order to benefit the patient’s health generally; the authority must be accepted and acted upon for the same purpose. As the obligation is implied, it can be excluded by express provision.
The obligation is not unqualified. As it arises from and is conditioned by the doctor’s duty to benefit the patient’s health generally, the obligation falls to be discharged only when the patient’s health would or might be prejudiced by refusing to make the information available.”
It is clear that the applicant owed a duty to the respondent’s clients and that that duty was breached. In Burnie Port Authority v General Jones Pty Ltd ( 1992-4) 179 CLR 520 the High Court held that amongst the categories of relationship which invoke a duty of care and render that duty non-delegable is that of ‘hospital and patient’ and that that relationship gives rise to
“a duty of care of ‘a special and more stringent kind, namely a
duty to ensure that reasonable care is taken.’”
I agree with the submission of the respondent that the responsibility owed by the Area Health Service when it provides a clinical service is indistinguishable from that owed by a hospital. In that regard reliance was placed on the decision of Reynolds JA in Albrighton v RPAH [1980] 2NSWLR 542 at 561-2 where his Honour said
“The hospital, by admitting the patient, could be regarded as
undertaking that it would take reasonable care to provide for all
her medical needs and whatever legal duties were imposed upon
those who treated, diagnosed or cared for her needs from time
to time, there was an overriding and continuing duty on the
hospital as an organisation. It was not a mere custodial
institution designed to provide a place where medical
personnel could meet and treat patients lodged there as it
might have been regarded in the years long since gone by.”
Mr Kimber submitted that a correct interpretation of the situation should be that would a reasonable employer taking a fair, objective and balanced view with respect to the small number of errors now shown to have been made by the applicant, consider itself to be justified in resorting to the serious disciplinary measure of termination, especially in circumstances where the nurse in question has obviously been working in difficult circumstances for many years and has never been subject to any counselling or warnings about the adequacy or acceptability of her performance? However I agree with the submission of Mr Newell that the evidence sets out the fundamental context in which this whole matter had to be judged. The applicant accepted that not only was she responsible for providing a clinical service which was absolutely fundamental to the health and wellbeing of women who used that service, but she was responsible for providing such a clinical service at ‘an advanced level of nursing practice, [involving] an advanced level of knowledge, ...of initiative...of responsibility... and therefore of course of accountability.’
It now has to be determined whether the applicant’s actions formed a “valid reason” within the meaning of the Act entitling the respondent to dismiss her. The respondent must discharge its burden that it had a valid reason for the termination and I agree with the submission on behalf of the respondent that in light of the decision in Sangwin v Imogen, IRCA, von Doussa J, No 70 of 1996, 8 March 1996, unreported) even if the Court were to come to the view that the conduct for which the applicant was terminated was not proven to the Court to have occurred on the Briginshaw test, that would not affect the validity of the Area Health Service’s reasons for the termination. The respondent submits that the matters which comprised it’s reason for the termination are objectively made out on the evidence in any event, and that is not the test it has to meet. I agree with that submission.
In Sangwin his Honour said
“An employer of a health worker or child care provider against whom was made an allegation of serious physical abuse that threatened the health and safety of those in that person’s care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty. Again, would not the employer have a sound or well-founded reason connected with the operational requirements of the undertaking, establishment or service for terminating the operator’s employment even if, after dismissal, a tribunal or court held that it was not satisfied that the misconduct alleged had occurred, or that it did not occur?”
In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Northrop J says when dealing with valid reason
“Section 170DE(1) refers to a “valid reason, or valid reasons, but the Act does not give a meaning to those phrases or the adjective “valid”. A reference to dictionaries shows that the word “valid” has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: “2. Of an argument, assertion, objection, etc; well founded and applicable, sound defensible: Effective, having some force, pertinency, or value.” In the Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid reason.”
In its context in s 170DE(1), the adjective “valid” should be given meaning or sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170 DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR, when considering the construction and application of s 170DC.”
In Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)
Honour stated in similar vein:
“Neither counsel made any submissions on the question whether the phrase “valid reason” used in sub-s170DE(1) of the Act imposed a requirement that in all the circumstances a termination of employment at the initiative of an employer not be unjust or unfair. The terms of the Act suggest that such a construction is arguable. The terms of the Act suggest that such a construction is arguable. Section 170CA of the Act states that the object of Div 3 of Pt VIA is to give further effect to the Termination of Employment Convention (“the Convention”) the text of which is set out in Schedule 10 of the Act. Art 8 f the Convention requires a contracting party to the convention to ensure that a worker sho has been dismissed is entitled to challenge that dismissal in an appropriate tribunal if the worker considers that his or her “employment has been unjustifiable terminated” and pursuant to At 9 of the Convention that tribunal is to be empowered “to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.”
The applicant relied upon the case of Ranson v Director General of DOCS, (matter no 16 of 1996, Government and Related Employees Appeal Tribunal, (“GRATE”) unreported, 4 December 1996) where the appellant appealed against the decision of the Director-General of the Department of Community Services (DOCS) to demote him from the position of Director of Nursing to Nursing Unit Manager as a result of negligence proven against him. The Director-General came to his first decision as a result of receiving two complaints concerning the treatment of patients at a centre that cared for developmentally disabled persons. The basis for the appeal was that the appellant had been made a scapegoat for the serious systemic problems found to exist within the centre where the circumstances were such that the solution to those problems was not only extremely complex but ultimately beyond the control of the appellant. That situation did not pertain to Mrs Ison. In handing down its decision GRATE stated:
“We accept that the management of clients with very challenging behaviours is extremely difficult, and continually calls for professional judgment to handle a situation in a way which protects the client,
other clients and the staff from physical harm and/or assault. In such cases, we also accept that errors of judgment will occur. Errors
of judgment do not always amount to negligence or the purposes of s. 75 of the PSM Act.”
The actions of Mrs Ison did not fall solely into the category of “errors of judgment” but neglect of duty on several occasions which potentially could be life threatening to the women patients and accordingly it is a finding of this Court that the respondent did have a valid reason to terminate Mrs Ison. Although Mrs Ison had for some time worked in the area of women’s health, there was no evidence that other areas of nursing, be they of a general of specialist area, would not be available to her should she so decide. It is a finding of this court that the applicant trained as a registered nurse between 1980 and 1983 and that she obtained a midwifery certificate in 1984/1965. Further, that until January 1987 she worked as a pupil, then student, the registered midwife in various public hospitals in New South Wales (exhibit 1). In referring to Kym Smoker, Chief Justice Wilcox said
“As I understand Lee J’s view, it is that the validity of the employer’s reason cannot be divorced from its effect on the employee. It is not enough that there is a reason for the termination that is defensible from the employer’s point of view. The reason must be one that makes the termination “justified”, after taking into account the effect of the termination on the employee.”
It is now relevant to consider what level of investigation was required to be conducted, and was in fact conducted, by the respondent into this matter. In Sangwin, von Doussa J in approving Bi-Lo v Hooper (1994) 53 IR 224 states
the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as it was within its power, before dismissing the employee, it has conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct a was reasonable in the circumstances; it gave the employee every reasonable opportunity and reasonable time to answer all the allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged.”
Mr Newell submitted that the employer is certainly obliged to conduct as full an investigation as is reasonable in all the circumstances and I agree with his proposition that in the facts of this case that it is relevant that the investigators were medical administrators and nurses, aware of the standards to be met. In relation to the duty of care to be exhibited by employers in conducting investigations, it can be said on the basis of Schaale v Hoechst Australia (19932) 47 IR 249 at 252 per Heerey J; approved in this Court in AWU-Fime Union v Queensland Alumina (1995) 62 IR 385 at 391 per Moore J:
“Employers are not required to have the skills of police
investigators or lawyers.”
It is noted that on 17 August 1995 the applicant was contacted in writing by the respondent (exhibit E) wherein the allegations against her are clearly defined. Then the applicant was granted access to all the documents that were of concern to the respondent, and the time for reply to exhibit E was extended to allow the applicant to consider her position. The evidence showed that various other contacts between the applicant, her union and the respondent took place. On 29 November the applicant’s union responded to the allegations. By letter dated 7 December 1995 the respondent pointed out the allegations against the applicant for a fourth time. Shortly thereafter a meeting took place between the applicant, her representatives met with the respondent. A report was then provided of that meeting by Mr Schofield to Mr Mills and the applicant advised of the decision on 21 December 1995.
It was put by the applicant that s 170DC has been breached, seemingly on the basis that the applicant was not given another interview. In Gibson v Bosmac (1995) 60 IR 1, Wilcox CJ stated:
“Ordinarily, before being dismissed for reasons elated to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job a risk and given an adequate opportunity of defence. However...the section does not require any particular formality. Where the employee is aware of the precise nature of the employer’s concerns about his or her conduct or performance, and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”
I agree with the submission of the respondent that there is no requirement pursuant to s 170Dc that having had the opportunity on 3 previous occasions to defend herself against the allegations put, the applicant is then not required to be consulted about penalty. Accordingly it is my view the applicant has not been denied the opportunity to fairly deal with the allegations against her.
I dismiss the application of Mrs Fiona Ison.
I certify that this and the preceding 48 pages
are a true copy of the reasons for decision of
Judicial Registrar Tomlinson JR as recorded in the transcript
and revised by the Judicial Registrar.
Associate: Catherine O'Connor
Dated: 3 March 1997
APPEARANCES
Applicant Counsel: Mr. M.J. Kimber Instructed by: New South Wales Nurses Association Respondent Counsel: Mr. P.J. Newall Instructed by: Northern Rivers Area Health Service
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