FEDERAL COURT OF AUSTRALIA
Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4)
[2016] FCA 33
File number(s): NSD 828 of 2012 Judge(s): GRIFFITHS J Date of judgment: 5 February 2016 Catchwords: HUMAN RIGHTS – proceedings under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) – allegations of direct and indirect discrimination under s 9 of the Racial Discrimination Act 1975 (Cth) relating to applicant’s training as a psychiatrist – allegations made against applicant’s supervisor and director of training – applicant’s burden to establish allegations to the Briganshaw standard not discharged – application dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Evidence Act 1995 (Cth) ss 136, 140
Health Practitioner Regulation National Law (NSW) s 139B(1)(a)
International Convention on the Elimination of All Forms of Racial Discrimination art 5
Racial Discrimination Act 1975 (Cth) ss 9, 9(1), 9(1A), 9(1A)(a), 18A, 18A(2)
Cases cited: Australian Medical Council v Wilson [1996] FCA 591; citation [1996] FCA 1618; (1996) 68 FCR 46
Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2012) 122 FCR 19
Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26; (2014) 221 FCR 86
Lina Obieta v New South Wales Department of Education and Training [2007] FCA 86
Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650; (1998) 91 FCR 8
Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046
Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No 2) [2014] FCA 907
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Date of hearing: 23-27 March and 21 July 2015 Date of last submissions: 21 July 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 397 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr P M Knowles Solicitor for the First Respondent: Moray & Agnew Counsel for the Second Respondent: Ms P A Horvath Solicitor for the Second Respondent: Holman Webb Lawyers Counsel for the Third and Fourth Respondents: Mr J McLeod Solicitor for the Third and Fourth Respondents: Lander & Rogers ORDERS
NSD 828 of 2012 BETWEEN: DR LICIA MAIOCCHI
ApplicantAND: ROYAL AUSTRALIAN & NEW ZEALAND COLLEGE OF PSYCHIATRISTS
First RespondentDR CRAIG WILSON
Second RespondentDR STEPHEN JURD
Third RespondentSTATE OF NEW SOUTH WALES - NORTHERN SYDNEY LOCAL HEALTH DISTRICT
Fourth Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
5 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The originating application filed on 15 June 2012 be dismissed.
2.The applicant pay the costs of the first, second, third and fourth respondents as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
Introduction
This case involves serious allegations of racial discrimination under the Racial Discrimination Act 1975 (Cth) (the Act). The proceedings come before the Court pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth). The applicant, Dr Maiocchi, represented herself. When the proceedings were originally commenced, there were numerous respondents. The proceedings gave rise to several interlocutory applications and interlocutory judgments. In one of those interlocutory judgments (Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046), Nicholas J summarily dismissed the proceedings in respect of some of the original respondents and ordered that Dr Maiocchi replead her claims against the then remaining respondents.
On 22 August 2014, Nicholas J refused Dr Maiocchi leave to file a proposed draft amended originating application and a further amended statement of claim (Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No 2) [2014] FCA 907). His Honour ordered that the proceedings against the remaining respondents be defined by, and limited to, the following statement of issues:
Statement of Issues
1.Did the fifth respondent (Dr Wilson) contravene s 9 of the Racial Discrimination Act 1975 (Cth) (the RD Act) between March and May 2010 in connection with his supervision of the applicant (Dr Maiocchi) while she was on secondment to the Northside Clinic by unlawfully discriminating against Dr Maiocchi in relation to:
(a)his preparation and adoption of a mid-term evaluation dated 23 March 2010 in relation to Dr Maiocchi;
(b)his request for a remediation plan in relation to Dr Maiocchi; or
(c)his allegations of unsatisfactory performance in relation to Dr Maiocchi’s work in his letter to the sixth respondent (Dr Jurd) dated 14 May 2010;
based upon Dr Maiocchi’s race, descent or national or ethnic origin, and in circumstances where such acts had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life?
2.If the answer to 1 is yes, is the first respondent (RANZCP) vicariously liable for Dr Wilson’s contravention of s 9 of the RD Act?
3.What damages should be awarded to Dr Maiocchi by way of compensation for any of the alleged wrongful acts referred to in 1 which is found proven?
4.Did Dr Jurd contravene s 9 of the RD Act between April and May 2010 in connection with his supervision of Dr Maiocchi while she was on secondment to the Northside Clinic by unlawfully discriminating against Dr Maiocchi in relation to:
(a)the preparation and adoption of the remediation plan dated 13 April 2010;
(b)his alleged acceptance at face value, and without independent or critical evaluation, of the allegations of unsatisfactory performance in relation to Dr Maiocchi’s work in the letter from Dr Wilson to Dr Jurd dated 14 May 2010;
(c)withdrawing or procuring the withdrawal of Dr Maiocchi’s clinical privileges;
based upon Dr Maiocchi’s race, descent or national or ethnic origin, and in circumstances where such acts had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life?
5.If the answer to 4 is yes, is RANZCP vicariously liable for Dr Jurd’s contravention of s 9 of the RD Act?
6.If the answer to 4 is yes, is the seventh respondent (NSLHD) vicariously liable for Dr Jurd’s contravention of s 9 of the RD Act?
7.What damages should be awarded to Dr Maiocchi by way of compensation for any of the alleged wrongful acts referred to in 4 which is found proven?
The respondents who remained in the proceedings were the Royal Australian & New Zealand College of Psychiatrists (the College) (the first respondent); Dr Craig Wilson (the second respondent); Dr Stephen Jurd (the third respondent) and the State of New South Wales – Northern Sydney Local Health District (the fourth respondent). The third and fourth respondents had common legal representation.
Broad overview of background facts
Before summarising the parties’ evidence relating to the Statement of Issues, which evidence was voluminous, it is desirable to provide a broad overview of the background facts. Many facts were uncontroversial but, as will emerge later in these reasons for judgment, others were keenly disputed.
Dr Maiocchi emigrated to Australia in April 1990 from Argentina, where she had qualified as a medical doctor in 1977 and as a medical specialist in radiation oncology in 1984. Dr Maiocchi became an Australian citizen in mid-1993. She is now approximately 60 years of age. Spanish is her first language and she speaks that language with her husband at home, however, their two children have English as their first language. As will emerge, Dr Maiocchi’s English language communication skills are an important issue in the proceeding.
Dr Maiocchi obtained full registration as a medical doctor in Australia in 2004, having graduated as a doctor with the Australian Medical Council (AMC) in 2002. In mid-2004, Dr Maiocchi was admitted into a training program to train as a general practitioner. However, in March 2005 she decided that she preferred to train as a psychiatrist. In April 2005 she was admitted to the College as a trainee in psychiatry. She also undertook a Master’s Degree in Psychiatry with the NSW Institute of Psychiatry.
The events which give rise to these proceedings generally occurred during the period March to May 2010, when Dr Maiocchi was working as part of her training as a registrar in psychiatry at the Northside Clinic in Greenwich, NSW. By that time, she had successfully completed nine rotations as a psychiatry trainee. She took up her position at the Northside Clinic in January 2010. Her supervisor at the Clinic was Dr Wilson who is a qualified psychiatrist and who practises as a consultant psychiatrist at the Clinic. Dr Wilson is an approved supervisor by the College.
During the relevant period, Dr Jurd was the director of postgraduate training in psychiatry for the Northern Sydney Local Health District (NSLHD) and was also the director of training for the College.
Dr Maiocchi’s allegations of racial discrimination relate to certain conduct of both Dr Wilson and Dr Jurd during her period at the Northside Clinic. As noted above, those allegations are confined to matters set out in the Statement of Issues. In broad terms, the allegations against Dr Wilson (see [1] of the Statement of Issues) relate to his preparation of a report dated 23 March 2010 which was a mid-term evaluation assessment of Dr Maiocchi’s traineeship. Dr Wilson requested in that document that Dr Maiocchi be subject to a formal remediation plan. This request was made against the background of Dr Wilson’s dissatisfaction with various aspects of Dr Maiocchi’s traineeship. Dr Maiocchi alleges that Dr Wilson’s mid-term evaluation of her and his request that she be placed on a formal remediation plan was unlawful conduct contrary to s 9 of the Act because that conduct was based upon her national or ethnic origin and impeded her traineeship with the College.
Dr Maiocchi makes similar allegations against Dr Wilson arising from a letter dated 14 May 2010 (the letter of complaint) which Dr Wilson wrote and sent to Dr Jurd at the latter’s request. The letter of complaint set out various allegations by Dr Wilson of unsatisfactory performance by Dr Maiocchi in relation to her work at the Northside Clinic. The allegations are sufficiently described later in these reasons for judgment and, given their length, need not be set out here.
Dr Maiocchi’s allegations against Dr Jurd, which also relate to conduct which is claimed to be unlawful and in contravention of s 9, are set out in [4] of the Statement of Issues. In broad terms, Dr Maiocchi alleges that Dr Jurd unlawfully discriminated against her based upon her national or ethnic origin in relation to:
(a)Dr Jurd’s preparation and adoption of a formal remediation plan dated 13 April 2010 in respect of Dr Maiocchi;
(b)Dr Jurd’s alleged uncritical acceptance of Dr Wilson’s claims as set out in his letter of complaint regarding Dr Maiocchi’s work; and
(c)Dr Jurd’s involvement in the withdrawal of Dr Maiocchi’s clinical privileges at Northside Clinic in May 2010.
Dr Maiocchi’s only allegation against the College is her claim that the College is vicariously liable for the acts of Dr Wilson and Dr Jurd under s 18A of the Act, which is raised in [2] and [5] of the Statement of Issues.
Each of the relevant respondents strongly denies Dr Maiocchi’s claims. Dr Wilson defended and explained his actions in respect of Dr Maiocchi by reference to his concerns regarding:
(a)his perception that Dr Maiocchi was resistant to feedback;
(b)Dr Maiocchi’s clinical performance at the Northside Clinic, which concerns he said were shared by other doctors and nursing staff; and
(c)a series of incidents involving various patients at the Northside Clinic in which either Dr Wilson or other professionals regarded Dr Maiocchi’s clinical judgment to be unsatisfactory and not up to the expected standard of a trainee psychiatrist in her position.
With specific reference to the mid-term evaluation report which he prepared in March 2010, Dr Wilson said that its purpose was to ensure that Dr Maiocchi was aware of his concerns about her progress so that they could work together to address the relevant issues and have Dr Maiocchi successfully complete her traineeship. Dr Wilson said that the sole purpose of the document was to assist Dr Maiocchi by focussing her attention on her areas of weakness. He strongly denied that the document was based on Dr Maiocchi’s national or ethnic origins or migrant status.
Dr Wilson pointed to various events after the mid-term evaluation which he said were consistent with him trying to help Dr Maiocchi, including him meeting with Dr Jurd and Dr Bill Lyndon (the unit director at Northside Clinic) on 8 April 2010 to discuss the contents of the proposed remediation plan, continuing to supervise Dr Maiocchi in her traineeship, consulting with other professionals about Dr Maiocchi’s progress and providing feedback to her.
Dr Wilson gave detailed evidence regarding certain matters which occurred in relation to a patient known as BM, which events occurred in the period 7-11 May 2010 and which, he said, ultimately caused Dr Wilson to lose confidence in Dr Maiocchi’s capacity to care for his patients because he believed she lacked core medical skills. Dr Wilson conveyed his concerns to Dr Lyndon and Dr Jurd, which led to Dr Maiocchi’s placement at Northside Clinic being withdrawn on 11 May 2010. At Dr Jurd’s request, Dr Wilson subsequently prepared the detailed letter of complaint in which he particularised his concerns regarding Dr Maiocchi.
In sum, Dr Wilson rejected the allegations made against him on the basis that his involvement in preparing the mid-term evaluation report, his requesting Dr Jurd to prepare a formal remediation plan for Dr Maiocchi and his letter of complaint did not constitute conduct which was based on Dr Maiocchi’s national or ethnic origin but were all solely based on his concerns regarding Dr Maiocchi’s professional performance and competency as a psychiatric registrar.
Dr Jurd’s response to the allegations made against him in [4] of the Statement of Issues may broadly be summarised as follows. First, as to the claims regarding Dr Jurd’s role in drafting and finalising the remediation plan:
(a)the remediation plan was directed at improving Dr Maiocchi’s oral communication skills to a level that was required for a trainee in psychiatry, bearing in mind the importance of effective communication skills in that profession;
(b)the proposals in the remediation plan that Dr Maiocchi continue to study English, particularly her spoken language skills, moderate her accent, as well as read “lowbrow magazines, thereby increasing fluency in local vernacular” were reasonable and appropriate in the context of the importance of communication skills in psychiatry and where Dr Jurd personally had observed that Dr Maiocchi’s language was at times difficult to understand, particularly in situations of heightened pressure or stress; and
(c)these aspects of the remediation plan were not “based on” Dr Maiocchi’s race and, after the remediation plan was finalised, Dr Maiocchi indicated a preparedness to work on at least some matters in the plan which were intended to improve her communication skills.
Secondly, as to the complaint regarding Dr Jurd’s involvement in the decision on 11 May 2010 to withdraw Dr Maiocchi’s clinical privileges at the Northside Clinic, Dr Jurd said that this decision was made by him in consultation with other professionals regarding Dr Maiocchi’s clinical skills and it had nothing to do with her national or ethnic origins or migrant status.
Thirdly, as to Dr Maiocchi’s complaints concerning Dr Jurd’s evaluation of the letter of complaint, Dr Jurd emphasised that he received the letter at least three days after the decision was taken to withdraw Dr Maiocchi’s clinical privileges and there was no evidence that he uncritically accepted the matters raised by Dr Wilson in that letter. Dr Jurd drew attention to his vast experience and said he carefully considered Dr Wilson’s complaints and discussed them with other relevant personnel, including his superior Dr Michael Paton (the clinical director at Northside Clinic) before deciding that Dr Maiocchi should be the subject of a formal risk assessment and there be further investigation of the concerns about her clinical performance. For the duration of those processes Dr Jurd arranged for Dr Maiocchi to be placed on non-clinical duties at Macquarie Hospital.
The College’s position was that none of the conduct of which Dr Maiocchi complained as set out in the Statement of Issues constituted direct or indirect discrimination for the purposes of the Act and that, even if it did, the College was not vicariously liable under s 18A of the Act because neither Dr Wilson nor Dr Jurd were employees or agents of the College. The College also relied on the defence in s 18A(2) of the Act and claimed that it took all reasonable steps to prevent any discriminatory conduct.
Dr Maiocchi’s evidence summarised
Dr Maiocchi gave her evidence in chief orally, in accordance with a direction given earlier in the proceedings by Nicholas J. Much of Dr Maiocchi’s oral evidence was read from a lengthy written document which she took with her into the witness box. She also read out parts of her written outline of opening. On several occasions Dr Maiocchi demonstrated that she had considerable difficulty understanding the difference between giving evidence and making a submission. This is perhaps understandable considering that Dr Maiocchi is not a lawyer.
It is convenient to describe the essence of Dr Maiocchi’s grievances by reference to her written complaint to the Australian Human Rights Commission (the Commission) in early January 2011.
In her written complaint to the Commission, Dr Maiocchi claimed that, prior to January 2010 when she started her rotation at the Northside Clinic, her communication skills and professional attitude with both patients and co-workers, as well as her capacity to accept feedback and to work as part of a team, had been assessed as meeting or exceeding the requirements to work as a medical doctor or a psychiatry registrar in Australia. In support of this claim, Dr Maiocchi pointed to the following matters concerning her communication skills:
(a)the Occupational English Test for medicine which she passed in April 1991;
(b)her graduation with the AMC after an oral clinical examination in August 2002;
(c)her completion of five successful terms as an intern in the public hospital system in NSW between January 2003 and January 2004;
(d)her completion of five successful terms as a RMO1 in the public hospital system in NSW between January 2004 and January 2005;
(e)her admission to the GP training program on 28 June 2004;
(f)her admission as a trainee of the College in April 2005;
(g)her successful completion of nine rotations as a psychiatry trainee up to January 2010;
(h)her successful three year course in the Master’s Degree in Psychiatry;
(i)her satisfactory completion of some specific College training requirements, including observed interviews, psychological therapies, successful assessment/management of ten people with a history of substance abuse etc, passing her written exam on 5 March 2010;
(j)her successful completion of a job interview for the position of psychiatry registrar in June 2010; and
(k)a reference letter dated 23 December 2010 from Dr Bernardi.
Dr Maiocchi complained that she was the victim of racial discrimination because she described it as “the most likely root cause for the behaviour of the actual persons involved”, and “that discrimination has been the basic motivation for the bullying and harassment I have been subjected to”. She particularised her complaint as one of discrimination based on race (ethnic origin and/or immigrant status).
In support of her complaint, Dr Maiocchi cited the following written documents:
(a)the mid-term rotation report dated 23 March 2010 authored by Dr Wilson;
(b)the remediation plan dated 13 April 2010 authored by Dr Jurd; and
(c)the basic training certificate of completion dated 28 May 2010 prepared by Dr Wilson.
Dr Maiocchi complained that in these documents her communication skills and professional attitude were either directly attacked or directly deemed to be inadequate or, by implication, exposed her professional attitude as inadequate, with no justification. Dr Maiocchi submitted to the Commission that the only indication of the reason for the remediation plan and both evaluation documents was as follows (emphasis in original):
3.2.1The fact that Dr. Wilson believes that my English, while interviewing patients, must be similar to the stereotype for an uneducated Mexican speaker as it is often portrayed in the American cinema. It is supposed that I use the Spanish words “si” repeatedly, in Spanish, and hence I must include the word “yes” repeatedly in English, most unnecessarily and out of place. The reality is that I do not even speak Spanish in this way. I do not know how Dr. Wilson has arrived to (sic) this idea about me and how Dr. Jurd, who has had several conversations with me over the years has been able to support Dr. Wilson’s belief.
3.2.2The fact that Dr. Jurd believes that South Americans are “pugnacious”, usually avoid hard work, call names (which is very common in Latin America in totally informal conversations), and they are too proud to stand feedback. Hence, the Remediation Plan appears to be consistent with Dr. Jurd’s ideas of South Americans.
In her oral evidence in the Court, Dr Maiocchi said that she had spent a total of only seven weeks at the Northside Clinic from January 2010 onwards, yet she was found wanting in her communication skills and professional knowledge after having spent seven successful years working in Australian hospitals. She said that Dr Wilson’s mid-term rotation assessment dated 23 March 2010, which was completed after only four weekly supervisions and her having been barely two months at the Clinic (three weeks of which she was on study leave) could only be explained by prejudice. Dr Maiocchi said that this was supported by Dr Wilson’s remarks in his February 2011 interview with the Commission, where Dr Wilson is recorded as saying with reference to Dr Maiocchi that “nobody has ever needed highly specific guidance like make sure your shoes are tied”.
Dr Maiocchi said that Dr Wilson’s bias, which she believed had been influenced by input he had received from nursing staff, was evident in the mid-term rotation report he prepared. She said that his assessment of her was inconsistent with her prior achievements, including the assessment by the NSW Institute of Psychiatry. She said that Dr Wilson’s criticisms of her expression skills were inconsistent with the successful rotations she had completed in the period 2008-2010, as well as earlier assessments in which she was evaluated as either “above expectation” or “meeting expectation”. She also drew attention to her basic training certificate signed 7 January 2010.
Dr Maiocchi emphasised that of her nine psychiatry rotations, she had passed all six which assessed patient interviewing prior to joining Northside Clinic on 18 January 2010, and there was no indication that there were issues with her English. She stated that all of her nine supervisors prior to Northside Clinic saw no reason why she should not continue to progress in her psychiatry training. Dr Maiocchi said that in March 2010 she was eligible to be admitted to the advanced training segment of her traineeship in psychiatry. She said that the requirements to be eligible for advanced training were described by the College in a document entitled “Link 55” and that she had to:
(a)have 36 months fulltime basic training;
(b)complete two required case histories;
(c)satisfy all basic training requirement experiences;
(d)have a current registration as a medical practitioner in Australia;
(e)be of good standing with the relevant medical registration board or equivalent approved body;
(f)be selected to enter the advanced training program by the director of advanced training; and
(g)be appointed to an appropriate approved training post.
Dr Maiocchi said that she had to pass a written exam and clinical exam as part of the College’s Link 55 requirements. She had not passed the clinical exam, but she did pass the written exam on her third attempt. Dr Maiocchi added that she believed she was in the most favourable position to attempt the clinical examination as she had passed her written exam and that increased her chances of successfully passing the clinical exam. She explained that she wanted to have the rotation at Northside Clinic so that she could practise her presentation skills and improve them with the clinical exam in mind and that Northside Clinic had a good reputation in this area.
Dr Maiocchi explained that in 2007 she had completed the requirements of the NSW Institute of Psychiatry to obtain a Master’s Degree in Psychiatry, pending her written dissertation, which she ultimately completed in 2012.
Dr Maiocchi pointed to Dr Wilson’s statement in his interview with the Commission that Dr Maiocchi’s written English was better than her verbal English and her verbal expression was much better than her verbal comprehension. She said that Dr Wilson’s view of her English and communication was “highly biased and unsubstantiated”.
Dr Maiocchi said that she was being singled out when Dr Wilson presented her on 23 March 2010 with a document which described the expected daily tasks for a registrar in Unit 2 at Northside Clinic. She said that she believed that Dr Wilson’s prejudice was founded on her status as a migrant, based upon his statement in his Commission interview that “no doctor has ever needed that before”, referring to the written statement of duties.
Dr Maiocchi also said that the mid-term rotation report was biased because Dr Wilson’s assessment “of my communication skills contrast sharply with my ability to progress in the training to the level of being eligible to apply for the advanced training”. She said that Dr Wilson’s statement in that report that her communication skills in both expression and comprehension were “dramatically below the required level to practise psychiatry” was inconsistent with all her previous psychiatry rotation assessments.
Dr Maiocchi acknowledged that she had unsuccessfully attempted the written exam twice during her basic training but she emphasised that she ultimately passed on the third attempt which she sat in March 2010.
Dr Maiocchi complained that Dr Wilson had stopped her from completing her long psychiatry case, which involved her treating a patient at Royal North Shore Hospital (RNS Hospital).
As to Dr Wilson’s claim that Dr Maiocchi was unable to accept feedback, she emphasised that all her supervisors during the period 2005 to early 2010 had assessed her as meeting the relevant training objectives and that she had scored results of 3 (i.e. meeting expectation) from two of her nine supervisors, a score of 4 (i.e. above expectation) from five of her nine supervisors and the remaining two supervisors scored her at the level of 5 (i.e. exceptional). In contrast, Dr Wilson assessed her at a score of 1 (i.e. unsatisfactory) in respect of “attitude to supervision”, which contrasted with a score of 5 in respect of the same matter in the rotation Dr Maiocchi did immediately before she joined Northside Clinic. She described Dr Wilson’s assessment as “completely inconsistent and demonstrate (sic) his failures”.
Dr Maiocchi also emphasised that during her Master’s course with the Institute of Psychiatry, her ability to accept feedback was assessed as “excellent” in seven out of 11 assessments and as “good” in the remaining four assessments. She added that she was assessed positively in relation to matters such as her respect for her peers, accepting suggestions about her work, listening attentively to other group members and accepting decisions made by the group.
Dr Maiocchi then gave oral evidence in respect of each of the patient incidents which were raised by Dr Wilson in his letter of complaint.
By way of background relating to Dr Wilson’s stated concerns regarding Dr Maiocchi’s dealings with patient BM, Dr Maiocchi said that, as at 11 May 2010, she had attended at the Northside Clinic on 38 working days (with various days taken off for study leave, public holidays and sick leave because of a car accident on 10 March 2010, as well as stress leave). She said that in contrast with other trainees, Dr Wilson carried out a mid-term evaluation of her on 23 March 2010, which she said was two weeks in advance of other trainees and in circumstances where, by then, she had completed only four weekly one hour supervision sessions with Dr Wilson and had worked only on 27 days at the Clinic.
In relation to BM specifically, Dr Maiocchi said that she had admitted BM on 29 April 2010. On Friday morning 7 May 2010, Dr Wilson had seen BM by himself. Dr Maiocchi claimed that he left a note for her in the communication book along the lines of “nothing else needs to be done” in respect of BM and without mentioning any issue of delirium. She then said that over the following weekend Dr Wilson sent her a text inquiring about her written exam result, which she described as being “out of character for a supervisor but does not show any concern about the patient that Dr Wilson says that he left delirious”. She said that this was the first time in her seven years’ medical practice that a supervisor had left her a note in a communication book, which is generally used by nurses. Dr Maiocchi said that this was the first time that Dr Wilson had communicated with her through the communication book, that the book had subsequently been “discarded by Northside Clinic” and it was not available to be produced in evidence. As will shortly emerge, there is a dispute whether Dr Wilson ever left any instructions for Dr Maiocchi in the communication book.
Dr Maiocchi gave evidence regarding the medication which Dr Wilson prescribed for BM. On 3 May 2010 he ceased BM’s use of Risperidone and started her on an antipsychotic aripiprazole called Abilify. He also increased BM’s dose of the antidepressant Cymbalta from 60 mgs to 100 mgs a day. Dr Maiocchi said that the medical records indicated that blood samples had been taken from BM on the morning of Friday, 7 May 2010, shortly after BM had been reviewed by Dr Wilson. Dr Maiocchi said that she was not aware that blood samples had been taken and that she only became aware of the blood test results when she reviewed BM’s records on Monday, 10 May 2010.
Dr Maiocchi said that later in the afternoon of Friday, 7 May 2010, she arranged for further blood tests to be done on BM the following Monday. She said that she reviewed BM during the morning of Monday, 10 May 2010 and left a message for Dr Wilson on his phone. Dr Wilson returned her call in the early afternoon and instructed that BM have an MRI, which Dr Maiocchi organised at approximately 6 pm on that day. She said that in the late afternoon of 10 May 2010 she received the pathology test results from the blood samples taken from BM on 7 and 10 May 2010. Dr Maiocchi explained that there had been some change in the administrative protocol regarding the collection of pathology results at the Clinic which was not communicated to her during her study leave. She said that she personally collected the pathology results which came through as facsimiles and discussed the cessation of diuretics and fluid restrictions for BM with a nurse. Before she had a chance to talk to the patient personally, she said she saw Dr Wilson. She said that she told him about the pathology results and he said that he would talk to BM. Dr Maiocchi said that she had looked for BM in her room, but she was not there.
Dr Maiocchi addressed the allegations made in Dr Wilson’s letter of complaint relating to BM. As to the claim that she failed to notify Dr Wilson of the serious level of BM’s low sodium (which he described as a medical emergency), Dr Maiocchi maintained that she had told Dr Wilson of the result as soon as it was practically possible for her to do so. She added that there was no evidence that she failed to identify the seriousness of BM’s sodium result at 120 mmol/L on Friday, 7 May 2010 and 128 mmol/L on the following Monday.
Dr Maiocchi challenged Dr Wilson’s claim that BM had delirium. She said that there was no reference to that diagnosis in BM’s medical records, including in respect of Dr Wilson’s examination of BM on the morning of 7 May 2010. Dr Maiocchi also challenged Dr Wilson’s description of BM as having delirium by reference to the definition of delirium in DSM-IV-TR (a medical text entitled Diagnostic and Statistical Manual of Mental Disorders). She emphasised that BM had a sodium level of 131 mmol/L on her admission to the Clinic. She also pointed to the fact that BM’s referral letter by her GP referred to BM being admitted “for recent deterioration of depression and for review of medication”, which Dr Maiocchi described as psychiatric reasons and not medical reasons. She said that BM also used opiates on an almost daily basis and had done so for at least 90 days.
Dr Maiocchi noted that Dr Wilson had asked for blood tests to be done after he had examined BM during the morning of 7 May 2010 and that, according to the medical records, the nursing staff reported that, in the evening on that day, BM was “settled”, “pleasant” and chatting with nursing staff. She said that other entries in BM’s medical records revealed that she had no cognitive impairment and that she developed a transient episode of confusion overnight which was nevertheless not severe enough to need clinical attention. Dr Maiocchi concluded that it was unlikely that BM merited a diagnosis of delirium. She emphasised that Dr Wilson never recorded such a diagnosis in BM’s medical records at any time, including in his discharge letter. Dr Maiocchi said that Dr Wilson was being “deceitful” in his letter of complaint in suggesting that BM was suffering from delirium.
Dr Maiocchi gave detailed evidence relating to the condition called hyponatremia (which involves low sodium), and how hyponatremia can be classified at various states, including hypovolemic, hypervolemic or normal volemic. She explained that hyponatremic states were associated with sodium depletion and associated low blood pressure. She described BM’s medical history as pointing to normal volemic hypo-osmolar hyponatremia which was due to “inappropriate antidiuretic hormone triggered by psychotropic medication as the more likely working diagnosis”. She also explained that hyponatremia is considered acute when it develops within 48 hours of prior normal serum sodium concentration and that the condition is considered chronic if it develops slowly over more than 48 hours. I have not set out all of Dr Maiocchi’s oral evidence in respect of hyponatremia and have simply sought to highlight what appear to be the key relevant points.
Dr Maiocchi challenged Dr Wilson’s claim in his letter of complaint that Dr Maiocchi “did not realise a medical emergency had been narrowly avoided purely by chance”. In response, she said that the medical records made clear that she had recognised on 10 May 2010 that BM’s low sodium needed treatment and that she then directed what treatment was to be carried out. She also said that Dr Wilson’s medication for BM contributed to the improvement of BM’s sodium level, which corroborated a diagnosis of drug-induced hyponatremia.
Dr Maiocchi then addressed Dr Wilson’s claim that, during their supervision on 11 May 2010, he made a note of Dr Maiocchi’s response on 7 May 2010 to BM’s sodium level of 120 mmol/L, by attributing to her the comment that “it is just the limit for a consult”. While not disputing that a sodium level of 120 mmol/L meant that serious consideration should be given to transferring a patient to hospital or urgently obtaining a physician review, Dr Maiocchi questioned Dr Wilson’s interview statement to the Commission that he would be concerned if BM had a sodium level under 130 mmol/L in circumstances where, prior to her admission to the Northside Clinic, her reading had been 126/128 mmol/L. Dr Maiocchi gave the following evidence in criticising Dr Wilson’s statement:
However, the only evidence that Dr Wilson has to support his allegations of lack of knowledge of the seriousness of sodium level of 120 millimole per litre is a written quotation documented by himself, without my knowledge at the time, from a supervision which was conducted thoroughly between him and myself, with no one else present. In addition, importantly, the quotation is provided with no context. However, the tangible evidence available – the medical records – show that in the medication records my treatment of the patient’s sodium level 128 millimole on 10 May is in accordance with knowledge of the treatment of low sodium.
Dr Maiocchi said that Dr Wilson’s allegations against her in respect of BM was consistent with his “biased perception” of her and that his assumptions about her knowledge and trustworthiness were “unreasonable”. Dr Maiocchi emphasised that her medical knowledge had not been doubted in any of the previous assessments of her as a psychiatry registrar.
Dr Maiocchi was critical of aspects of Dr Wilson’s treatment of BM, including claims that there was no evidence that he performed a diagnostic assessment for substance abuse disorder (in circumstances where BM had a history of excessive opioid consumption), no arrangements were made to address chronic pain on BM’s discharge from the Clinic and Dr Wilson failed to include in BM’s discharge letter BM’s apparent dose escalation of opioids, which required more frequent and intense monitoring.
As to Dr Wilson’s criticism of Dr Maiocchi’s failure to inform BM of the need to restrict fluids, Dr Maiocchi said that she “delegated” this to Dr Wilson at his request, but she also noted that Dr Wilson denied seeing Dr Maiocchi after 4.30 pm on Friday, 7 May 2010.
Dr Maiocchi described Dr Wilson’s behaviour as “deceptive” when he alleged that he had not seen her on the afternoon of 7 May 2010. As to Dr Wilson’s criticisms concerning Dr Maiocchi’s communication to nursing staff of the need to restrict BM’s fluids, Dr Maiocchi highlighted Dr Wilson’s interview evidence with the Commission which was to the effect that it was necessary not only for Dr Maiocchi to record that information in the patient’s written notes, but also for her to convey that information verbally to a nurse. Dr Maiocchi said that because she could not find BM later on 7 May 2010, she spoke to one of the nurses about the diuretic and told her that BM was in fluid restriction. Dr Maiocchi complained that this was the first time in her professional life that she had encountered someone such as Dr Wilson going out of his way to investigate an event at this level because he wanted it done differently. She said that this constituted discrimination and victimisation.
As to Dr Wilson’s criticism that she failed to indicate the amount of fluid restriction, Dr Maiocchi said that it was generally accepted that a patient’s daily urinary output is 1200 mL and that their daily oral fluid intake should be restricted to 750 mL. She said that the nursing staff would generally be expected to reduce the fluid intake to less than one litre and she assumed that nurses would understand that fluid restriction in a patient with no medical problems, such as BM, would be about 800 mL of free water in a 24 hour period, so she felt “comfortable” indicating fluid restriction for BM. Dr Maiocchi accused Dr Wilson of having a biased perception of her knowledge and skill and said that there was no objective basis for his criticism of her failure to specify the amount of fluid restriction. She said that her sudden dismissal on 11 May 2010, without warning, was a grave indicator of the stress she was placed under while working at the Clinic and the kind of relationship she had with Dr Wilson as her supervisor.
As to Dr Wilson’s claim that she failed to order a physician review of BM, Dr Maiocchi said that she arranged for that to occur following the supervision on Tuesday, 11 May 2010.
As to Dr Wilson’s claim that many of the initial concerns about Dr Maiocchi came from nursing staff, Dr Maiocchi said that this comment showed the “highly toxic environment” she was in, which caused her high levels of stress. She also drew attention to the fact that she had a car accident after a heated supervision with Dr Wilson, which accident was unrelated to any medical reason but was “directly related to the extraordinary psychological stress I was in at the time, which was a normal reaction to a very abnormal situation”.
Dr Maiocchi complained about Dr Wilson’s criticisms of her ability to practise medicine as recorded in his letter of complaint. She said that she was given no prior notice of these concerns. She also relied on Associate Professor Greenwood’s comments in his report, which were to the effect that there was no evidence that Dr Maiocchi’s actions created any risk or harm to BM and that Dr Wilson, as the consultant, had to take ultimate responsibility for the management of his patient. As noted below, this report was admitted into evidence only on a non-hearsay basis. I will describe the contents and evidentiary significance of the report in more detail below.
As to Dr Wilson’s complaint that Dr Maiocchi failed to chart BM’s medication on her admission to the clinic, Dr Maiocchi said that the medical records showed that all BM’s medication was charted, except for propranolol but she simply followed the list provided to her by the patient, which included a referral letter from her GP (but which did not include any reference to propranolol). Dr Maiocchi pointed to the fact that BM was herself a professional health worker and had explained all her medications to Dr Maiocchi on admission. Dr Maiocchi gave evidence that, having regard to BM’s difficulties in reporting and handing over her medications, as well as Dr Wilson’s difficulties reporting and monitoring his patient’s opioid use, neither BM nor Dr Wilson were “trustworthy about communicating medication use, which makes more likely medication charting misunderstandings”. Later in her evidence, Dr Maiocchi expressly denied that she told Dr Wilson that 120 mmol/L of sodium was simply the limit for a consultation.
Dr Maiocchi challenged Dr Wilson’s evidence given during his interview with the Commission on 7 February 2011 when he made reference to Dr Margaret Harper, a consultant at Northside Clinic, telling him that Dr Maiocchi did not know the difference between sodium and haemoglobin. This criticism was directed to Dr Maiocchi’s contact with patient SM. Dr Maiocchi said that given the fact that she had worked successfully for seven years in the NSW public health system and had passed multiple exams and supervisions, to believe that she did not know the distinction between those items indicated Dr Wilson’s bias against her. She emphasised that during his interview with the Commission in February 2011, Dr Wilson was recorded as saying that:
Dr Maiocchi came to us on the basis that she was a fully qualified specialist physician in her own country and I think that her speciality was radiation/oncology so she really should have had a much higher level of medical knowledge.
Dr Maiocchi then addressed patient KS.
As to Dr Wilson’s concerns expressed in his letter of complaint regarding Dr Maiocchi’s interaction with KS, Dr Maiocchi said that, contrary to Dr Wilson’s letter, KS was 17 years old, not 19. Dr Maiocchi said that she admitted KS before Dr Maiocchi went on study leave approximately three weeks before the incident happened. Dr Maiocchi described KS on admission as a person who was “quiet, depressed and had suicidal thoughts”. She acknowledged that KS was in the intensive care unit (ICU) when she returned from study leave. Dr Maiocchi described the ICU as one where patients were more closely monitored and were prevented from leaving the area unnoticed, even though they were in the Clinic voluntarily. She said that at the relevant time KS was waiting for a bed back in the open ward area so that she could leave the ICU.
Dr Maiocchi confirmed that Dr Wilson asked her to interview KS. Dr Maiocchi acknowledged that she used the word “chubby” in speaking with KS even though this is not documented in KS’s medical records. She said that if Dr Wilson thought that there was an issue about that language he should have made an entry in the medical records. She also emphasised that no complaint was made by KS or her parents regarding the “chubby” incident. She described Dr Wilson’s description of KS’s reaction to her use of the term “chubby” as “a distorted perception of the situation”. She explained that that was because KS was not in the ICU as a category 4 person at high risk, but had been downgraded to category 3 and was waiting there to go back to the open ward. Dr Maiocchi also said that the medical records did not indicate that KS was not eating to the dangerous level described by Dr Wilson and that he was in effect suggesting that KS had anorexia nervosa. Dr Maiocchi explained why she considered that KS’s weight was in the normal range for a girl of her age and height and she attributed KS’s feeling of disgust about her weight to her depression. Dr Maiocchi relied upon Associate Professor Greenwood’s comments on the incident, where he said in his report that while patients with eating disorders may be sensitive to comments:
…it would be too high a standard to hold a registrar or even a consultant to a professional standard of use of general language in front of the patient.
Dr Maiocchi then addressed patient KG.
As to Dr Wilson’s claim that Dr Maiocchi had failed to undertake a clinical assessment of KG on KG’s admission to the Clinic and failed accurately to chart KG’s medication, Dr Maiocchi said that she believed that her assessment was an accurate reflection of KG and what KG told her. She explained that KG had been waiting at reception for approximately two hours and that she was both tired and irritated when Dr Maiocchi admitted her. Dr Maiocchi challenged Dr Wilson’s questioning of her assessment of KG and described his criticisms as “horrendously incorrect”. Dr Maiocchi accused Dr Wilson of being biased in his comments concerning KG’s admission and said that notwithstanding that he personally reviewed KG the day after her admission he did not make any additional comments on her medical records or report any other perceived deficiencies.
Dr Maiocchi referred to Dr Wilson’s comments in his Commission interview that he had been told by KG that Dr Maiocchi had spent only five minutes with her “and didn’t listen to anything I said”. Dr Maiocchi said that time perceptions are subjective and there was no evidence that the time she spent with KG was inadequate. Dr Maiocchi also denied that she had failed to chart the appropriate medications. She said that she recorded what KG told her and that the GP’s referral letter did not set out KG’s medications. Dr Maiocchi said that she added to the medications the fact that patient KG was also taking Tegretol Cremona after Dr Wilson advised her of that following the admission. Dr Maiocchi was critical of the fact that Dr Wilson complained in his interview that Dr Maiocchi had not prescribed Pulmicort for KG’s asthma and that he had to add that a week later. Dr Maiocchi stated that she had detected signs of KG’s asthma and recommended that her asthma be reviewed, however, Dr Wilson ignored that in his discharge summary.
In response to Dr Wilson’s complaint that another patient (LB) had suffered a presyncopal episode after being given Seroquel immediate-release instead of Seroquel slow-release, Dr Maiocchi said there were no grounds for Dr Wilson to claim that she was unaware of the different formulations of that drug. Dr Maiocchi acknowledged that she had made an error in charting that particular product but she disputed that the relevant patient experienced an adverse effect due to the error of being given immediate-release Seroquel.
Finally, Dr Maiocchi challenged Dr Wilson’s claim in his letter of complaint that there had been “a multitude of concerns about Dr Maiocchi’s ability to practise medicine and perform her role as a psychiatry registrar at the clinic” which matters had been “documented and managed in several ways”. She denied that the Clinic implemented a system of “performance management” to improve her work. Dr Maiocchi agreed that she had met with Nurse Unit Manager (NUM) Renee Atkinson in late March 2010, but she said was not told about any “performance management”, nor was that referred to in her weekly meetings with Dr Lyndon and the NUM.
Dr Maiocchi then gave evidence concerning her dismissal from Northside Clinic and the withdrawal of her clinical privileges. She asserted that Dr Jurd had assessed her due to her condition as a migrant and probably because of “some prejudice about someone coming from South America”. She criticised the fact that she had no role in formulating the remediation plan and that the plan itself was “unfair, discriminatory and humiliating”. Dr Maiocchi described Dr Jurd’s conclusions regarding her clinical interviewing skills as “biased” and inconsistent with previous positive assessments of her skills in this area. She described those assessments. She stated that Dr Jurd’s assessment of her ability to integrate feedback from her supervisors was inconsistent with all the evaluations of her as a psychiatry registrar since 2005. She rejected Dr Jurd’s view that she was not progressing through her College training as expected. She criticised Dr Jurd’s reliance on the fact that she only passed her written exam at the third attempt. She stated that Dr Jurd simply accepted at face value the allegations made by Dr Wilson in his letter of complaint.
Dr Maiocchi gave evidence of the meeting with Dr Jurd on 11 May 2010, which she attended together with her “English coach”, Dr Ruth Wajnryb. She said that Dr Jurd’s announcement of her dismissal from the Clinic came to her as “unexpected and devastating”. She complained that Dr Jurd’s actions were flawed because he did not have relevant medical records available to him when he made the decisions which were adverse to her, nor did he follow procedures required by the College.
Dr Maiocchi complained that the risk assessment which was subsequently carried out in relation to her around 19 May 2010 was deficient and non-compliant with relevant management guidelines.
Cross-examination of Dr Maiocchi
Dr Maiocchi was cross-examined at some length by Ms Horvath, who appeared for Dr Wilson. Dr Maiocchi acknowledged that some of her previous supervisors had recommended in her College mid-term and end-of-term rotation reports that she needed further to develop her English communication skills. She added, however, that none of them told her that lack of further improvement would stop her from achieving College Fellowship. Upon closer questioning, Dr Maiocchi then acknowledged that her first supervisor had told her that her level of English was not appropriate for a psychiatrist.
Dr Maiocchi further acknowledged under cross-examination that her supervisor at Wyong Hospital had noted in Dr Maiocchi’s rotation report dated 15 January 2008 that one of the areas needing development was her knowledge of basic sciences and psychopharmacology. Her supervisor (Dr Furst) also noted:
This trainee is performing below my expectations of a third year registrar & will require improved communication skills & knowledge base in order to practice in a safe manner without a higher level of supervision.
Dr Maiocchi further acknowledged that another of her supervisors, Dr Robyn Bradley, commented that her accent impaired her effective communication.
Another mid-term rotation report dated 22 October 2009 by Dr Robert Russell was also drawn to Dr Maiocchi’s attention and, in particular, the following comments in it:
1.Stress management – dealing with some colleagues who don’t share her values & attitudes.
2.Understandable ESL arises in some situations.
Dr Maiocchi acknowledged that Dr Russell was her supervisor in the term immediately prior to her term at Northside Clinic. Dr Maiocchi commented that this was a mid-term evaluation and that she was preparing for her exams and was “really stressed because of my level of demand at work and study” (sic). She said that she regarded Dr Russell’s comments as supportive, unlike Dr Wilson’s mid-term evaluation, which she regarded as threatening her progress.
Dr Maiocchi rejected the proposition that the purpose of the 2010 remediation plan was to help her pass the term at Northside Clinic. She said it was based “in negative evaluation that it did not represent what I felt about myself” and that she was told that she was “the worst registrar ever”.
Dr Maiocchi explained that when she said that the College had objectively assessed her proficiency in English in 2009, she was referring to the fact that she had passed her two written case histories. She confirmed that one of the reasons why she wanted to go to the Northside Clinic was to work on her presentation skills, which is what she said Northside was known for.
Dr Maiocchi said that prior to joining Northside Clinic, in her previous rotations, she had attended mock presentations organised for the registrars which were supervised by a professor. On some of those occasions she was the presenter. She said that she practised making presentations in telephone conversations with her consultant while she was on call. Dr Maiocchi described her contact with consultants while she was working in the public system and said that generally such consultants were part-time and came in two and a half days a week. She said that she did not find the Northside Clinic to be different to the public health system. She added that even though the consultants were not present at Northside as often as was the case in the public system, she found that the telephone and emails were good ways to communicate. Ultimately, however, Dr Maiocchi accepted that, because the consultants at Northside often saw their patients early or late in the day, she did not see them as often as she saw consultants in the public system. I accept that evidence.
Although Dr Maiocchi said that she could not recollect Dr Wilson telling her at a supervision that she had misunderstood an exam question and had therefore done a poor answer, she recalled him suggesting how she might approach an exam question in a different fashion. She denied, however, saying to Dr Wilson that she knew what she was doing and did not require any further help from him.
After acknowledging that her study leave in February-March 2010 was an exhausting time, Dr Maiocchi confirmed that, on return to the Clinic on 8 March 2010, she participated in a supervision with Dr Wilson the following day. She reaffirmed her claim that it was in this supervision that Dr Wilson threatened her professional career and training. She explained that this was because he said then that she was “the most terrible registrar” and that he was organising or thinking about a remediation plan. When she was closely cross-examined on the latter point, Dr Maiocchi said that she had not kept a note of that supervision nor had she ever noted that Dr Wilson told her on 9 March 2010 that he was going to put her up for a remediation plan. Dr Maiocchi denied that she was confused between events which occurred on 9 and 23 March 2010, when she was given her mid-term assessment which contained the reference to the remediation plan. Dr Maiocchi also said she had no recollection of Dr Wilson telling her in the 9 March 2010 supervision that he was trying to help her improve her performance.
Dr Maiocchi recalled that the first time she made a note of Dr Wilson’s statement that she was the worst registrar that they had ever had at the Clinic was in her letter of complaint dated 8 August 2010 to the College, in which she complained of harassment. Dr Maiocchi rejected the suggestion that her memory of what Dr Wilson was saying was faulty. She said that it “was a great blow to me” and she could not forget it. The following exchange then occurred:
And is it possible that the – as you haven’t made a – note or a written record of the conversation, that your memory may be faulty?---It may be faulty in the actual words, but it’s not faulty in how I felt because that afternoon I left Northside Clinic and I was not – I – I had lunch before I left, and I drive my car and I had an accident. I had all the medical tests to see what happen (sic) and I have not been charged by the police because the people from ambulance, they describe to the police since that day, she did nothing.
This is the first of many examples of Dr Maiocchi’s tendency to reconstruct actual events based on her subjective emotional state, rather than give an objective and dispassionate recollection of the relevant event to the best of her recollection. Dr Maiocchi’s evidence was frequently given in a manner which reflected her subjective perception of what occurred and its effect upon her emotions and without particular attention to the details of her observations of what actually occurred.
Dr Maiocchi confirmed that her car accident occurred on 9 March 2010, and that she went to work on 10 March 2010 and was told to see a GP and get a medical certificate. She returned to work on 15 March 2010. Dr Maiocchi said that when she returned to work, she “was very stressed” (as she had been since 9 March 2010) and that was because the environment was no longer a place in which she felt comfortable or could succeed – she described it as “a toxic environment”. Dr Maiocchi confirmed, however, that she did not tell anyone at the time that she thought she was working in a toxic environment.
Dr Maiocchi was cross-examined on the pathology results for Dr Harper’s patient, SM. Dr Maiocchi accepted that she had made an error in reviewing the pathology results and confused the haemoglobin and sodium readings. She said this was because they appeared on the form in different places to what she had come to expect. Dr Maiocchi said that she had told Dr Harper about the error and that the readings were the opposite to what she first thought, namely SM’s sodium was normal but his haemoglobin was abnormal. Dr Maiocchi later clarified that her evidence was that she told Dr Harper on the phone that she had found a sodium level of 122 mmol/L, that they subsequently discussed it and found that Dr Maiocchi had made an error. The following day Dr Maiocchi wrote in SM’s medical records that the patient was well and a sodium level of 139 mmol/L was recorded.
In relation to the supervision on 16 March 2010 with Dr Wilson, after Dr Maiocchi’s return to work following her car accident, Dr Maiocchi said that she was “reasonably annoyed” with Dr Wilson’s questions about her health. She acknowledged that she did not make any note of her claim that Dr Wilson said that he was going to report her to the Medical Board if she had any disability. She ultimately accepted that Dr Wilson never did in fact report her to the Medical Board. There was then the following exchange (emphasis added):
Do you accept that your memory of that event may well be flawed and that Dr Wilson, in fact, didn’t say he was going to report you to the medical board?---Still I remember the situation because I was really – and I think justified – feeling that I was threatened. I felt intimidated for the fact that he was telling me that he was looking for a reason to send me to the medical board---It just ---?--- or that was my interpretation.
This provides a further example of Dr Maiocchi’s tendency to reconstruct events to accord with her personal emotional state and perceptions, rather than give an objective and dispassionate factual account.
Dr Maiocchi denied that she ever told Dr Wilson that she could make a list of his mistakes because he also made mistakes. She denied saying to Dr Wilson that the only consultant on the ward whom she thought was any good was Dr Meagher. She accepted, however, that she probably said to Dr Wilson that although she thought he had been a good consultant at the start of her rotation, she no longer thought that.
Dr Maiocchi was then cross-examined about patient KS. When asked to explain the difference between anorexia nervosa and anorexia in relation to KS, Dr Maiocchi said (errors in original):
She had been, the days before – I wasn’t in Northside Clinic so I just knew through the medical records – that she had deteriorated her depression and because of her deterioration of her depression, she was not wanting to eat much and that symptom is called anorexia. But doesn’t mean that that patient is anorexic. And she was just needed to be looked after to check that she was drinking enough, that she was eating enough.
It appeared that Dr Maiocchi agreed in cross-examination that KS was anorexic, but then she later seemed to retreat from this position.
Dr Maiocchi denied Dr Wilson’s recollection that KS had a look of “abject horror” after Dr Maiocchi described her as “chubby”. She confirmed, however, that she was stressed and upset during the interview with KS, which followed immediately after the supervision session with Dr Wilson. Dr Maiocchi explained the incident with KS as follows (errors in original):
Shortly after you described KS as “chubby”, do you recall that Dr Wilson terminated the interview?---How can I say that I did not describe her as chubby? First of all, because I was not referring – as I said before, that I was not referring to the physical. I said it many, many times. I was so stressed that – I was composed and I talk properly and everything, but I had a lapse. I wanted to describe – I will say it another time, if you allow me. Someone when is depressed, have downcasted face. And she was – when I saw her the first time that impacted me to see in a young person that expression. But impacted me when I was back that she was smiling. The first time she didn’t smile to me in any point. She was really depressed. When I came back, even when she had been obviously very bad, the – at the moment I saw her, she was smiley, she was relaxed, she looked good to me. But I was not referring to weight in any point of – or manner, and it was not that I told her “chubby”. In – in – in – in the list of wrapping up the assessment, I’m telling her all the things that I thought she had been achieving in my absence, and how I saw her getting better waiting for going down. It was just – I can’t understand how, for five years, I have been repeating this and I have been asked for this. So for five years I said exactly the same.
HIS HONOUR: Your evidence – and you correct me if I’m wrong, but your evidence is that you accept that you used the word “chubby”?---I used the word, but not in the – with the intention that is presented, and the reaction of the patient – I wouldn’t miss it, because if you allow me, I am – I have – we all have some sort of talent. I am a very well – very good observer, that is why I am good – or I like to do psychodynamic therapy. I am a good observer, and I wouldn’t miss her face.
Dr Maiocchi then said that, in her discussion with Dr Wilson after the interview with KS, she recalled him using the word “flabbergasted” because it was a new word for her but that otherwise she could not reproduce their conversation word for word. She said, however, that she recalled being “treated as a different person because I was culturally different, and I could not understand a patient because I was culturally different”. Dr Maiocchi said that Dr Wilson was “telling me that culturally I was different and that that was his understanding of why I was using the word ‘chubby’”.
When it was put to Dr Maiocchi that Dr Wilson did not accuse her of being different, but said that perhaps it was a cultural difficulty to call someone chubby, Dr Maiocchi said that she did not remember that but when asked whether it was possible that this was what Dr Wilson precisely said, she answered “I don’t think so. Or maybe, yes, I don’t know”. She said that she could not recall one way or the other.
Dr Maiocchi confirmed that, in her written statement to the NSLHD in March 2011, she had stated that the word “chubby” was not a disparaging word.
At this point in her cross-examination, Dr Maiocchi disputed that she had said earlier in her cross-examination that KS was anorexic. As noted above, she appeared to back away from her earlier evidence on this issue and asserted that KS was anorexic, however, Dr Maiocchi was at pains to say that this required closer analysis in order to understand the implications of her saying to KS that she was “chubby”. There was the following exchange (errors in original):
Dr Maiocchi, I think everyone can accept that there are shades of grey, but you agree, don’t you, that it is accurate to describe KS in March 2010 as anorexic, don’t you?--- I agree with you because it’s the – it’s the only way I can answer your question, but if you remove the anorexia word from the context, so the anorexia word grows in – in importance and become an issue, that is not the case. One thing, and everyone would agree, that is what ..... how it have been said all the time, Dr Maiocchi said, chubby, to an anorexic patient, what is the image that comes in that, a patient that is about to die, so thin that you wouldn’t say chubby to that person, and I would be really very – in very bad shape if I would do that, but that was not the case. It was a girl with a normal weight that just had had a depression deepen – a depression that had become worse for a – for a few days or for a week, that I wasn’t in there, and in during that week she manifest that she was not hungry and she stop eating as a regular as she used – used to do, and there was a concern that maybe she was not drinking enough either.
Dr Maiocchi said that she had no recollection of Dr Wilson asking her to transcribe KS’s blood tests onto the electroconvulsive therapy (ECT) paperwork.
Dr Maiocchi was asked whether she thought that by providing her with the duty statement on 23 March 2010, Dr Wilson was singling her out because she was a migrant. She responded: “At the time I was just wondering why, but I had no elements to think about that”.
Dr Maiocchi said she viewed the duty statement as an act of intimidation and another step taken by Dr Wilson to put her into a remediation. She denied that the document would help her do her job. Although Dr Maiocchi accepted that the purpose of a mid-term report was to help a trainee focus on areas of weakness before the end-of-term evaluation, she said she did not see Dr Wilson’s mid-term evaluation in that way because she could not find that it helped her and it was “just unacceptable” and “so negative”.
It was then put to Dr Maiocchi that even if she failed the basic training term at Northside Clinic she had accumulated 45 months of basic training in any event and the requirement to progress to advanced training was only 36 months. Dr Maiocchi responded by saying that if she failed the term at Northside Clinic “maybe is (sic) not just the right time to ask to be considered for the advanced training with the term failed”. She agreed, however, that even if she had failed the term at Northside, she would not have needed to repeat that term at Northside, but would have had to do another term elsewhere because she said she needed to keep working and training in order to reach her Fellowship.
On numerous occasions, the Court reminded Dr Maiocchi of the need to provide responsive answers to questions. As noted above she displayed a tendency at times to describe events to reflect her subjective impressions or feelings at the time, rather than give an objective and non-judgmental account of the facts. Dr Maiocchi reconstructed some important events to advance her case, as is evident from the extracts set out above and below.
Dr Maiocchi was cross-examined in relation to her complaints dated 8 August 2010 and 2 November 2010 to the College, and 4 January 2011 to the Commission. She confirmed that during the interview she had with the NSLHD on 31 March 2011 she made no claim that Dr Wilson had told her on 9 March 2010 that she was going to have a remediation. When Dr Maiocchi was pressed that Dr Wilson did not in fact say that to her on 9 March, she responded by saying that her “truthful answer of what I can emotionally recall is that something on the lines that I was – my career was on threaten (sic) was said” and that this “can be translated into, you are going to be in a remedial”. This is a strong example of the way in which Dr Maiocchi’s recollection of some key events was highly subjective and driven by her personal emotions.
Dr Maiocchi was cross-examined in relation to the medication chart for patient LB, who was administered Seroquel immediate-release rather than the slow-release version. Dr Maiocchi accepted that she had mischarted the product. However, she disputed Dr Wilson’s description of the patient as being presyncopal.
Dr Maiocchi was then cross-examined about KG and the entries she had made in the mental state examination section of this patient’s medical records. She said she had no recollection of Dr Wilson telling her the day after she admitted KG that he was surprised that she had found KG to be relatively stable on admission because he had found her to be quite different the following day and did not think that her condition would have changed so greatly overnight. Dr Maiocchi was cross-examined about the interview she gave to the NSLHD in March 2011, where she stated that she should have included more in the mental state examination part of the record in respect of KG.
Dr Maiocchi confirmed that from 13 April until 10 May 2010 she continued to have weekly supervision sessions with Dr Wilson. She accepted that she had no complaints about Dr Wilson during that period. She acknowledged that Dr Wilson sent her a text over the weekend of 8-9 May 2010 inquiring about her exam results and also sent her a congratulatory text. She said that she was surprised “because weekends are very precious when you worked so hard the whole – the whole week”.
Dr Maiocchi acknowledged that on 10 May 2010 Dr Wilson sent her an email with some feedback and that she was relieved that it was positive feedback. The email also made reference to Dr Harper having said that it was difficult to give Dr Maiocchi feedback, a comment which was directed to a problem in relation to Dr Harper’s patient, LG, for whom Dr Maiocchi had prescribed the drug Bactrim. Dr Harper made a note in the medical records that Dr Maiocchi should not order medication without prescribing the dose. Dr Maiocchi then gave some rather confusing evidence about the dosage for Bactrim.
Dr Maiocchi was then cross-examined about BM. She rejected the proposition that Dr Wilson’s notes of his examination of BM on the morning of 7 May 2010 indicated that BM had delirium. She said that the matters listed by Dr Wilson were inconsistent with that diagnosis because delirium was graver than the matters listed by Dr Wilson. She added that if Dr Wilson considered that BM was delirious, he should have had the patient transferred to a clinical setting.
Dr Maiocchi was adamant that Dr Wilson had written in the communication book that nothing else needed to be done in respect of BM. She also denied that Dr Wilson’s reason for requesting an MRI was because he was concerned that BM had delirium.
Dr Maiocchi described the exchange with Dr Wilson when she saw him in the corridor outside BM’s room. She confirmed that he told her that he would talk to BM. She also acknowledged that she did not make an entry in BM’s medical notes to the effect that she had told Dr Wilson about the sodium result of 120 mmol/L, nor did she record anything in the notes about telling BM about the fluid restriction. She explained that she did not need to make such a note because she would tell the nurses verbally about the diuretic medication and to restrict BM’s fluids. Dr Maiocchi also accepted that she did not note the amount of the fluid restriction in BM’s medical notes.
Dr Maiocchi sought to explain why she had identified the amount of fluid restriction in respect of SM and not BM by reference to the fact that she had just started work at the Clinic when she saw SM. I found her explanation of the difference unpersuasive.
When Dr Maiocchi was asked in cross-examination whether she recalled saying to Dr Wilson at the supervision on 11 May 2010 that sodium of 120 mmol/L was “just the limit for a consult”, she said she had no such recollection. This is inconsistent with her oral evidence in chief on this matter in which she explicitly denied saying those words.
Dr Maiocchi was cross-examined about her complaint dated 3 January 2011 to the Commission. She complained that Dr Wilson had told her that she said “yes, yes, yes” and she explained this aspect of her complaint to the Commission. When it was put to Dr Maiocchi that Dr Wilson had never said anything to her about her race, Dr Maiocchi said “Yes, he did”. Significantly, when Dr Maiocchi was asked whether she could refer to any statement by Dr Wilson at any time in which he made any reference to her race or migrant status other than his statement that her description of KS as “chubby” might be due to a cultural difference, Dr Maiocchi said “no”. She then quickly added that she was concerned that the reason why Dr Wilson considered that she said “chubby” was racist.
It is revealing that Dr Maiocchi pointed to no other statement of Dr Wilson as grounding her complaint of racial discrimination other than his proposition that her use of the word “chubby” might indicate a cultural difference. Dr Maiocchi’s evidence on this topic during her cross-examination provides another example of her tendency to allow her subjective and emotional perceptions to dominate her recollection of events.
At the end of her cross-examination by Ms Horvath and, in effect, in re-examination, Dr Maiocchi expanded upon some of her earlier answers. In respect of patient LB and the allegation that Dr Maiocchi did not know the difference between immediate and slow-release Seroquel, Dr Maiocchi said that while she accepted that she made an error, it was wrong to say that she did not know the difference. She also added that even though she made an error there was no incident because the patient’s condition did not change.
Dr Maiocchi then expanded on her evidence in respect of the drug Bactrim and Dr Harper’s claim that Dr Maiocchi had given the patient LG a double dose. Dr Maiocchi’s evidence on this topic was still rather confusing, as is reflected in the following extract (errors in original):
My point is that also is not ideal to put Bactrim only. The fact that I didn’t put DS, the DS is not double the dose and I never put it on the other way but anyway, by putting Bactrim, the only Bactrim that the pharmacy could provide to the unit was Bactrim DS.
Dr Maiocchi was then cross-examined by Mr McLeod, who appeared for Dr Jurd and the State of New South Wales - NSLHD.
Dr Maiocchi confirmed that she sat the written exam for a third time in March 2010 and she obtained her results in early May 2010. She confirmed that Dr Jurd sent her a text message on about 7 May 2010 enquiring about her exam results. She said that it was a “terrible surprise” to receive his text because it was uncharacteristic for him to contact her in this way and at this time, given their relationship since 2007, and “uncharacteristic for the situation I was having in Northside Clinic”.
Dr Maiocchi confirmed that Dr Lyndon, the unit director at the Clinic, was familiar with her work as a psychiatrist trainee. She confirmed that she respected Dr Lyndon in the first half of 2010.
Dr Maiocchi was then cross-examined at some length regarding the meeting she had with Dr Jurd on 13 April 2010 concerning the remediation plan. She confirmed that Dr Jurd said that he had heard many concerns from Dr Wilson about her progress and that he had considered the mid-rotation report dated 23 March 2010. She also confirmed that Dr Jurd told her at the meeting that he had concerns about her use of the word “chubby” to KS and that he told her that “you don’t say ‘fatso’” to a patient. Dr Maiocchi stated that she was not happy that she had used that word, but that her use of the word did not “mean anything related with my culture or that in my culture we consider and go through with movements of how good is to be chubby or whatever else that have been said (sic)”. She said that she told Dr Jurd she used the word “chubby” with her own children when they were little and that it was not insulting.
On the issue of Dr Jurd’s use of the term “pugnacious”, Dr Maiocchi said:
We got caught into the “fatso” situation. I was very upset with the “fatso” situation, and then he began with “pugnacious”, so I said, “I don’t know that word”, and he said, “What is this in your language?”. I said, “(foreign language spoken)”. He said, “Well, there you are. The people from your country are pugnacious, (foreign language spoken)”. That was what I got. That is why later on I got someone to go with me, because all that was too much for me.
That account of their exchange broadly accords with Dr Jurd’s own evidence (which is set out further below).
However, when it was put to Dr Maiocchi that Dr Jurd had indicated that he found it difficult giving her feedback because he thought she was pugnacious, Dr Maiocchi disagreed. She also rejected the proposition that she had held up her fist when he explained what he meant by pugnacious.
Dr Maiocchi initially agreed with the proposition that Dr Jurd had told her one way to describe KS would have been to say that she was looking healthier, but she then added that she did not think that he had in fact said that. I found Dr Maiocchi’s evidence on this matter to be rather confused.
The following exchange then occurred:
…And all I want you to do is focus on this question. I want to be very clear on it, at no point in that meeting did Dr Jurd refer to people of South American ethnicity generally as being pugnacious people, did he?--- Phrase it like that, no.
This is a further example of Dr Maiocchi modifying her evidence in order to differentiate between her subjective and emotional perception of events and their objective reality.
Dr Maiocchi rejected various other propositions which were put to her regarding what was discussed at the meeting on 13 April 2010. She stated that they did not discuss the contents of the remediation plan but she was asked to sign one copy and retain another. She said that she had no other option but to sign the plan even though she did not accept it. She rejected the proposition that she told Dr Jurd that she did not need the remediation plan. She also rejected that Dr Jurd indicated to her that he was trying to help her progress and complete her rotation. She added that she wanted to finish the term and she still had hope that in some ways “my things were going to work out”. Dr Maiocchi then added that when she signed the remediation plan using a lengthier version of her normal signature it was intended as a gesture of rebellion on her part because she thought the plan was being imposed on her.
Dr Maiocchi accepted that Dr Jurd had recommended to her at some time, not at the 13 April 2010 meeting, that she read lowbrow magazines and that she told him that she was too busy at the time because she was studying for her exams. But she told him she would listen to cassettes while she was driving. She then added that she told Dr Jurd that she was listening at the time to Ulysses by James Joyce.
Dr Wilson assessed Dr Maiocchi’s performance as unsatisfactory in respect of the following five training objectives:
(a)competence in psychiatric interviewing and in comprehensive assessment skills, including risk assessments;
(b)competence in presenting cases to the team, on call and in supervision;
(c)further development of competence working as a member of a multidisciplinary mental health team;
(d)professional attitudes including safety, boundaries, consistency, availability, confidentiality, respect, accountability, motivation and commitment; and
(e)attitude to supervision.
Dr Wilson assessed Dr Maiocchi as being either below expectation or meeting expectation in respect of the remaining training objectives. He also commented that Dr Maiocchi’s areas of particular strength were “Diligence with self-directed research to improve knowledge base” and “Endeavouring to have a thorough & professional attitude”. The areas which needed further development according to Dr Wilson related to Dr Maiocchi being “defensive and adversarial in supervision” and being “very poor in accepting feedback”; her patient interviewing demonstrated “disturbing judgement errors” and her “communication skills in both expression & comprehension are dramatically below the required level to practise psychiatry”.
In circumstances where Dr Wilson considered that Dr Maiocchi had not shown satisfactory progress to date, Dr Wilson recommended that a further remediation process be developed with Dr Jurd, with a substantial focus on communication, understanding and attitude. Dr Wilson signed the report and made an express declaration that the information contained therein “was provided in good faith and is considered to be a true reflection” of Dr Maiocchi’s ability.
There is no reason to doubt the sincerity of Dr Wilson’s declaration (nor was it ever put to him that his declaration was false). There were numerous incidents involving Dr Maiocchi which provided the foundation for Dr Wilson’s assessment. I do not consider that in proceedings such as these that the Court is the ultimate arbiter of the question of Dr Maiocchi’s clinical competence (or, indeed, that of Dr Wilson or Dr Jurd). Dr Maiocchi plainly disputed Dr Wilson’s judgment and assessment of many of the incidents. In particular, she disputed the seriousness of many of the errors which were attributed to her and she relied upon Associate Professor Greenwood’s report in support of her position. It is important to reiterate, however, that this report was admitted only on a non-hearsay basis and its author was not called as a witness. Accordingly, there was no opportunity to cross-examine him on his report. That is to be contrasted with Dr Wilson and Dr Jurd, both of whom were cross-examined. Furthermore, Dr Maiocchi elected not to cross-examine on the written evidence of both Professor Hopwood and Dr Samuels.
It should also be noted that, while Associate Professor Greenwood was briefed with some of the written materials which were also in evidence in the proceedings, much more extensive evidence was available to the Court, including the opportunity to assess the evidence of witnesses such as Dr Maiocchi and Dr Wilson and Dr Jurd. Associate Professor Greenwood did not have that opportunity. His report was based entirely on the papers which were briefed to him. Furthermore, it is significant to note that his report was written in a different context, being one which ultimately related to the issue whether Dr Maiocchi was guilty of unsatisfactory professional conduct in refusing to participate in the performance assessment which was arranged to take place in late 2011. For all these reasons, I give little weight to Associate Professor Greenwood’s views.
Having regard to the nature of the proceedings here (which are not the equivalent of an appeal or review under cl 14.3 of the Regulations), it seems to me sufficient to focus on the question whether or not there was a reasonable or plausible clinical basis which is unrelated to Dr Maiocchi’s national or ethnic origin for Dr Wilson’s assessment without ultimately determining whether these assessments were clinically right or wrong. These matters fall to be determined by reference to evidence which was admitted in the proceedings. As noted above, Dr Maiocchi urged the Court to treat as evidence all the affidavits sworn by her in the proceedings, her statements from the Bar table and the contents of many documents which were admitted into evidence only on a non-hearsay basis. I consider that that would be an entirely inappropriate course to take, substantially for reasons which were advanced by the respondents in opposing Dr Maiocchi’s submissions to the contrary.
In my view, the following incidents provide a reasonable and plausible basis for Dr Wilson’s assessment of Dr Maiocchi as reflected in the mid-term evaluation report he prepared:
·Dr Maiocchi had made various medication errors, including failing to chart regular medications and failing to keep medication charts up to date. For example, Dr Maiocchi misunderstood Dr Wilson’s instruction that she transfer KS’s pathology results to ECT forms and instead understood the instruction was that she order blood tests. There was also the incident of Dr Maiocchi prescribing immediate-release Seroquel in respect of patient LB instead of the slow-release form of that drug;
·Dr Maiocchi had communication difficulties with consultants, nursing staff and patients, a subject which was raised by Dr Wilson with Dr Maiocchi during the course of her supervision on 16 March 2010;
·she was told by Dr Wilson during the supervision on 16 March 2010 that she needed to see patients at least twice weekly and to see category 4 patients on a daily basis and, because of their priority, early in the day;
·there were concerns that Dr Maiocchi was not reading patient notes after individual patients had been seen by the consultant in circumstances where that was the manner in which consultants often communicated with registrars;
·on 15 March 2010, Dr Maiocchi misread SM’s pathology results and placed that patient on severe fluid restrictions until Dr Harper pointed out the error; and
·on 16 March 2010, Dr Maiocchi told patient KS, who suffered body disturbance issues, that she was “chubby”, which alarmed Dr Wilson.
For the following reasons, I reject Dr Maiocchi’s claims regarding the significance of her previous evaluations and past progress towards College Fellowship. It may be accepted that Dr Maiocchi demonstrated sufficient communication and language skills for the purposes of her various professional qualifications, including her Master’s degree. As Dr Jurd pointed out, however, this does not mean that her competency in these areas was sufficient for the purposes of her becoming a qualified psychiatrist. The particular communication and language skills required of such a person were fully described by Dr Samuels and Dr Jurd, as well as Dr Wilson. Their evidence should be accepted. It might be noted that the certificate of completion from Wyong Hospital was signed by Dr Furst, whose comments are set out at [73] above. This form was read by Dr Jurd in his capacity as director of training and signed by him on 15 January 2008, i.e. well before the events which occurred at Northside Clinic.
There is a long history of Dr Maiocchi being told that there were difficulties with her English communication and accent, dating back as far as 1 July 2005 when she received a certificate of completion from Sutherland Hospital, which noted a need for her to improve her English communication skills. Similar remarks were made in various other certificates of completion and mid-rotation reports from other Hospitals, including:
·the certificate of completion dated 5 July 2006 from Greenwich Hospital;
·the certificate of completion dated 8 January 2007 from RNS Hospital;
·the certificate of completion dated 2 July 20078 from RNS Hospital;
·the certificate of completion dated 15 January 2008 from Wyong Hospital;
·the certificate of completion dated 4 December 2008 from Macquarie Hospital;
·the certificate of completion dated 17 July 2009 from Ryde Hospital;
·the mid-rotation report dated 31 April 2009 signed by Dr Bradley; and
·the mid-rotation report dated 22 October 2009 signed by Dr Russell.
Previous evaluations which identified the need for Dr Maiocchi to improve her interaction with multi-disciplinary teams include:
·the certificate of completion dated 12 January 2006 from Sutherland Hospital (which identified this as a primary area requiring further development);
·the certificate of completion dated 4 December 2008 from Macquarie Hospital (in which it was identified as the first of three areas requiring further development);
·the mid-rotation report dated 22 October 2009, in which Dr Russell noted that the primary area requiring further development by Dr Maiocchi was “stress management – dealing with some colleagues who don’t share her values & attitudes”; and
·the certificate of completion dated 7 January 2010 from RNS Hospital.
As noted above, Dr Maiocchi was also informed on various occasions that she had to improve her medical and psychiatric knowledge base. This was noted in:
·the certificate of completion dated 15 January 2008 from Wyong Hospital;
·the mid-rotation report dated 16 September 2008 signed by Dr Gregory McLean; and
·the certificate of completion dated 4 December 2008 from Macquarie Hospital.
Although Dr Maiocchi correctly pointed out that she had passed her two case histories, this does not establish that she had a sufficient level of English proficiency for the purposes of her College Fellowship. I accept Dr Jurd’s explanation in his oral evidence that this demonstrated Dr Maiocchi’s communication skills were adequate for the purpose of her written exams, however, the clinical exams required a higher level of oral communication which Dr Jurd described as “a very difficult hurdle” for Dr Maiocchi. Dr Jurd’s assessment should be accepted. It is supported by Dr Samuel’s unchallenged evidence as to the importance of communication skills in psychiatry. It was also evident at various times during the course of the hearing that Dr Maiocchi did experience difficulties with her English communication and comprehension. There were numerous occasions on which she appeared to have difficulty in understanding questions which were put to her and needed to have them repeated. She also displayed some difficulty in providing responsive answers to many questions and the questions she posed for witnesses during cross-examination were often obscure and poorly expressed. I fully appreciate that Dr Maiocchi was under considerable stress as a litigant in person during much of the hearing. This serves to underline the fact, however, that when she is under stress her communication and language skills deteriorate. This was Dr Jurd’s assessment and I agree with it.
Other evidence confirms that Dr Maiocchi’s progress through her psychiatry training was not free from difficulties. This is reflected, for example, in the fact that:
(a)although she commenced her three year basic training in 2005, by April 2010 she was still to complete that basic training and move to her advanced training;
(b)approximately two-thirds of registrars pass the written exams on their first attempt, whereas Dr Maiocchi only passed on her third attempt; and
(c)Dr Maiocchi was still to sit the clinical exams which, as Dr Jurd stated, would be “a very difficult hurdle” for her given the requirements for clear thinking and clear, concise communication.
As to Dr Maiocchi’s use of the word “chubby”, I do not consider that the fact of Dr Maiocchi’s ethnic or national origin was a material factor in Dr Wilson’s reaction. It is unnecessary to determine whether or not KS actually suffered from anorexia nervosa because the evidence is clear from KS’s medical notes that she had body image disturbance and had made statements such as “I feel disgusting” and “I feel really big at the moment”. Dr Wilson’s comment to Dr Maiocchi to the effect that “I don’t know if this is a cultural difference or what it is, but that’s so not okay” does not demonstrate racial prejudice on his part. Rather, I see that comment as Dr Wilson endeavouring to understand how Dr Maiocchi could have used such an inappropriate expression. It was the fact that Dr Maiocchi used that word which was the material factor in the actions which then ensued, not the fact that Dr Maiocchi was a migrant from Argentina.
In support of her claim that she was experiencing a “toxic work environment” at the Northside Clinic, Dr Maiocchi relied in part on her claim that during her supervision with Dr Wilson on 9 March 2010, he threatened her career and told her that he was organising for her to be placed into a remedial. In my view, the evidence does not support these claims. Dr Wilson denies that he made any mention of a remediation plan during the 9 March 2010 supervision. There is no contemporaneous written document which supports Dr Maiocchi’s claim to the contrary. Significance must attach to the fact that despite Dr Maiocchi’s numerous complaints to various institutions and people (including the Australian Medical Association, the College, the Commission and the NSLHD), Dr Maiocchi never mentioned that Dr Wilson had told her on 9 March 2010 that he intended to place her into a remedial or otherwise threatened her career. I have no doubt that Dr Maiocchi was finding her time at the Northside Clinic to be stressful and demanding, not the least because of some of the incidents in which she had been involved which caused concern to other professionals but, as noted above, I consider that there was a plausible and reasonable objective basis for those concerns.
The evidence indicates that Dr Maiocchi had difficulty in accepting feedback from Dr Wilson almost right from the beginning of her traineeship at the Northside Clinic and that this affected their relationship. This falls far short, however, of demonstrating that Dr Wilson’s interactions with Dr Maiocchi were driven by racial prejudice on his part. As I have emphasised above, that proposition was strongly denied by Dr Wilson and it was never directly put to him in cross-examination that his denials were false. Those denials should be accepted.
It is convenient to now turn and address Dr Maiocchi’s claims against Dr Wilson by reference to the contents of his letter of complaint.
The first thing to note about the detailed letter of complaint is that it was written in response to a request from Dr Jurd and following the decision which had been arrived at on 11 May 2010 by Dr Jurd, Dr Lyndon and Dr Wilson that Dr Maiocchi be permitted no longer to work at the Northside Clinic.
Secondly, Dr Maiocchi’s claims of racial discrimination by Dr Wilson related primarily to those aspects of the letter of complaint which dealt with the incidents involving Dr Maiocchi and patients BM and KS. For the following reasons, I consider that there was a reasonable and plausible objective basis for Dr Wilson’s comments regarding Dr Maiocchi’s dealings with those two patients.
As to patient BM, Dr Maiocchi strongly disputed Dr Wilson’s claim that BM was delirious. As noted above, in proceedings such as this, it is not the Court’s task to rule upon the clinical judgment or competency of Dr Wilson. The critical issue is whether his description and assessment of the relevant events involving Dr Maiocchi has a plausible and objective basis and is inconsistent with the claim that he was racially prejudiced against Dr Maiocchi.
I am not satisfied that Dr Maiocchi has established that BM was not delirious on 7 May 2010 in circumstances where:
(a)Dr Wilson consistently maintained that she was and he had examined BM on that day, whereas Dr Maiocchi had not;
(b)Dr Wilson’s contemporaneous written notes of BM as recorded on 7 May 2010 are consistent with BM being delirious; and
(c)Dr Wilson’s actions on 7 May 2010 in ordering investigations into BM’s condition and ordering on 10 May 2010 that she undergo an MRI are also consistent with Dr Wilson’s diagnosis.
Nor am I satisfied on the evidence that Dr Maiocchi has discharged her burden of establishing that Dr Wilson had written to her about BM in the communication book. I accept that the communication book is no longer available but I cannot accept Dr Maiocchi’s claims that Dr Wilson wrote in it in circumstances where:
(a)it was not his practice to use the communication book to pass messages to a registrar; and
(b)the evidence establishes that Dr Wilson normally gave instructions to Dr Maiocchi concerning BM by making entries in her patient notes.
Dr Maiocchi also complained that Dr Wilson inaccurately stated in his letter of complaint that, during the supervision session on 11 May 2010, Dr Maiocchi showed that she did not understand the seriousness of BM’s low sodium level and that this was inconsistent with her treatment of BM the previous day. I find that Dr Wilson’s description of these matters has a reasonable and plausible basis because:
(a)I accept his evidence that on 11 May 2010 and in the course of the discussion of BM’s low sodium level Dr Maiocchi had said to Dr Wilson that a sodium result of 120 mmol/L “was just the limit to order a consult”. Dr Wilson made a contemporaneous note of this remark because he was so surprised by it. It was never put to Dr Wilson that the note was a fabrication; and
(b)there is also a reasonable and objective basis for Dr Wilson’s criticisms of the adequacy of Dr Maiocchi’s treatment plan for BM’s low sodium, particularly its lack of specification of the level of fluid restriction, the omission to provide for repeat blood tests or to arrange a review of BM by a physician.
Dr Maiocchi’s criticisms of Dr Wilson’s reference in the letter of complaint to her being subject to a performance management system at Northside Clinic does not establish racial discrimination on his part in circumstances where, although Dr Wilson had no personal involvement in that process, there existed an acceptable rationale for his belief, including Dr Wilson’s receipt of an email dated 23 March 2010 from Dr Lyndon who informed him that Dr Lyndon and the NUM would be addressing concerns about Dr Maiocchi through “the Clinic’s channels (called Performance Management)”.
Contrary to Dr Maiocchi’s claims, I do not consider that it was unreasonable or wrong of Dr Wilson to make reference in his letter of complaint to the “chubby” incident involving KS. On the contrary, it would have been a remarkable oversight on Dr Wilson’s part not to have made mention of this incident when he was responding to a request from Dr Jurd that he reduce to writing the concerns which he had about Dr Maiocchi.
Dr Maiocchi was also critical of what Dr Wilson said about patient KG in the letter of complaint. Dr Wilson said that there was a high degree of suspicion that Dr Maiocchi did not conduct sufficient assessment of new patients she admitted, including KG. He recorded that the patient had told him that the admission process conducted by Dr Maiocchi had been done in less than 10 minutes when normally it should take at least one hour. Dr Wilson confirmed that the nursing staff confirmed the short amount of time taken by Dr Maiocchi in admitting the patient and also that regular medications had not been charted on the patient’s admission documents. Dr Wilson recorded that he had raised these and other concerns with Dr Maiocchi regarding her admission of KG and that she had entirely denied them. In cross-examination Dr Maiocchi accepted that she had failed to record relevant information on KG’s patient record. In her interview with the Commission in March 2011, Dr Maiocchi stated that she should have included more in her mental state examination of KG about KG’s behaviour during the admission interview. In cross-examination in the proceeding, Ms Horvath asked Dr Maiocchi whether she stood by her evidence to the Commission to the effect that she should have included more information about KG in the admission documents, to which Dr Maiocchi responded affirmatively.
Dr Maiocchi also challenged the accuracy of Dr Wilson’s reference in his letter of complaint to her being “largely unaware that there were different formulations of medications” and his reference to patient LB as having suffered a presyncopal episode after being given the wrong form of Seroquel. Dr Maiocchi has not established that this aspect of the letter of complaint was driven by racial prejudice on Dr Wilson’s part. The essential fact remains that Dr Maiocchi did not dispute that she had mischarted the proper medication.
For all these reasons, I find that Dr Maiocchi has failed to establish to the relevant standard the allegations made against Dr Wilson under s 9 of the Act. It is not entirely clear that Dr Maiocchi pressed any complaint of indirect discrimination against Dr Wilson. Any such claim should be rejected, not the least because Dr Maiocchi failed to identify any requirement or condition imposed upon her by Dr Wilson with which she could not comply which was not reasonable in all the circumstances.
(ii) Claims against Dr Jurd
As noted above, the claims against Dr Jurd related to:
(a) his preparation and adoption of the second remediation plan;
(b) his alleged uncritical acceptance of the contents of the letter of complaint; and
(c)his involvement in the decision to terminate Dr Maiocchi’s clinical privileges at the Northside Clinic.
I unreservedly accept Dr Jurd’s evidence that his decision to implement the second remediation plan for Dr Maiocchi was not motivated by any consideration of her national or ethnic origin but was instead intended positively to assist Dr Maiocchi progress further in her traineeship. In deciding to implement the plan, Dr Jurd took into account the information included in the mid-term rotation report, Dr Jurd’s own experience of Dr Maiocchi during the first remediation which occurred in May 2009, other information he had received in relation to Dr Maiocchi and his personal interactions with her. As noted above, it was not put to Dr Jurd that his evidence in this respect (or, indeed, in any other respect) was false. Putting that matter to one side, however, I reiterate that I found Dr Jurd to be a most impressive and truthful witness and I accept all of his evidence without qualification.
I reject Dr Maiocchi’s claim that Dr Jurd uncritically evaluated the letter of complaint. Dr Jurd denied this claim and his denial was not directly challenged in his cross-examination as being false. Similarly, Dr Jurd expressly denied that his initial decision on 11 May 2010 to withdraw Dr Maiocchi’s clinical privileges was based on a relevant attribute under s 9 of the Act. Again, this denial went unchallenged. I accept Dr Jurd’s denial.
His denial is also supported by additional objective evidence which is inconsistent with the claims that the three relevant matters manifested racial discrimination on his part. I find that the purpose of the remediation plan was to assist Dr Maiocchi to progress in her traineeship by addressing issues which had been identified by Dr Wilson, Dr Lyndon and Dr Jurd. The remediation plan itself records its objectives as including having Dr Maiocchi continue her study of English and address spoken language skills, as well as moderate her accent so as to improve her verbal communication. Dr Jurd confirmed in his oral evidence that the purpose of the remediation plan was to enable Dr Maiocchi to finish her term successfully at the Northside Clinic and subsequently become a good psychiatrist.
I also accept Dr Jurd’s evidence regarding the importance of psychiatric patients being able to communicate effectively with a psychiatrist and his concerns that less-educated and less intelligent people might have difficulties with Dr Maiocchi’s accent in circumstances where Dr Jurd himself experienced such difficulties. Dr Jurd’s evidence on this subject is supported by the evidence of Dr Samuels and it also conforms with the Court’s own impressions of Dr Maiocchi’s communication and language skills as manifested during the course of the hearing. Significantly, Dr Maiocchi herself acknowledged during the hearing that she agreed with Dr Jurd’s view “that when I am stressed, my English deteriorates”. Although Dr Maiocchi claimed that Dr Jurd had referred to South Americans as “pugnacious” during the meeting between them on 13 April 2010, she ultimately accepted in cross-examination that he had made no such statements about South Americans generally. I accept the submission made on behalf of Dr Jurd that that meeting was a difficult one, but that he was motivated by a desire to help Dr Maiocchi by improving her communication skills and improve her working relationship with Dr Wilson so she could successfully complete her term at the Clinic. I have no hesitation in concluding that Dr Maiocchi’s ethnic or national origin or migrant status was not a material factor in any of Dr Jurd’s actions in respect of her.
No particular significance attaches in these proceedings to the fact that the second remediation plan was finalised without any input from Dr Maiocchi herself, which was contrary to the College’s protocols, or that Dr Jurd did not have all the medical records before him when he prepared the plan. I accept Dr Jurd’s evidence which was to the effect that ideally Dr Maiocchi ought to have been involved but that matters proceeded as they did because of the serious dissatisfaction at the Clinic with Dr Maiocchi’s progress and the need to implement a plan expeditiously in order to preserve Dr Maiocchi’s prospects of serving out her term at the Clinic. Dr Jurd also explained that he believed that it was important that when he met with Dr Maiocchi he had finalised the remediation plan for her so that she clearly understood its requirements. Furthermore, Dr Jurd explained that he did not expect to receive much meaningful input from Dr Maiocchi regarding the remediation plan because he found her to lack personal insights into her own circumstances. That evidence provides a plausible and acceptable explanation for Dr Jurd’s actions which is inconsistent with him having any racist motive. In particular, there is simply no basis to conclude that Dr Jurd’s non-compliance with College protocols was driven by Dr Maiocchi’s race or ethnic origin or migrant status.
As to the absence of medical records, I am not persuaded that this criticism goes anywhere near demonstrating that Dr Jurd was motivated by racial prejudices against Dr Maiocchi. The evidence is clear that Dr Jurd was well aware of the issues concerning Dr Maiocchi. I find that there was a reasonable and sound assessment by Dr Jurd and it was never put to him that his evidence concerning his motives and desires in respect of the remediation plan being intended to assist Dr Maiocchi was untruthful.
Similarly, I unreservedly accept Dr Jurd’s evidence as to the steps he took and his reasoning for deciding on 11 May 2010 that Dr Maiocchi’s clinical privileges should be withdrawn. Dr Wilson informed him around that time that he had lost confidence in Dr Maiocchi and was not prepared to have her treat his patients any longer. Dr Jurd spoke to Dr Lyndon at around this time and he was told by Dr Lyndon that the Mood Disorders Unit in the Clinic had lost confidence in Dr Maiocchi. This input caused Dr Jurd to conclude that there was no prospect of Dr Maiocchi continuing at the Clinic under any circumstances. On 11 May 2010 Dr Jurd told Dr Maiocchi that she could not return to work at the Clinic. He subsequently considered the letter of complaint from Dr Wilson. I reject Dr Maiocchi’s allegations that he did so uncritically. I accept Dr Jurd’s evidence that he gave careful consideration to the contents of that letter and also drew upon information which he had received from other professionals, as well as his own personal experience of Dr Maiocchi in confirming the termination of her privileges. I also accept that he conferred with Dr Paton before finalising the letter dated 19 May 2010 which informed Dr Maiocchi that, pending further investigation, her clinical privileges were withdrawn. Dr Paton was the director of clinical governance at the NSLHD and he advised Dr Jurd that a risk assessment should be conducted in relation to Dr Maiocchi with a view to determining whether or not she could safely carry out duties in the public health system. I accept Dr Jurd’s submission that the fact that he conferred with Dr Paton is consistent with him acting professionally and properly considering the issue of whether Dr Maiocchi should remain in clinical practice while a more detailed investigation was being carried out of the complaints made against her. This was entirely unrelated to Dr Maiocchi’s race or ethnic origin.
Dr Jurd advised Dr Maiocchi that she should report to Macquarie Hospital for non-clinical duties until a formal investigation into her clinical work could be completed. All of these matters are inconsistent with the claim that Dr Jurd’s decisions were “based on” Dr Maiocchi’s national or ethnic origin. Not only has Dr Maiocchi failed to establish the burden which she carried but I positively find that Dr Jurd’s actions were not “based on” these or any other relevant attributes for the purposes of s 9 of the Act.
Finally, Dr Jurd expressly rebutted in cross-examination:
(a)that he ever said to Dr Maiocchi that he believed South Americans to be pugnacious (a proposition that Dr Maiocchi herself subsequently withdrew);
(b)that he ever said that South Americans usually avoid hard work;
(c)that he ever said to Dr Maiocchi that he thought South Americans called names; and
(d)never told Dr Maiocchi that he thought South Americans were too proud to withstand feedback.
I unreservedly accept those rebuttals.
To sum up, I make the following additional findings in respect of the claims made against Dr Jurd. First, in his capacity of director of training, Dr Jurd properly relied on feedback which he received from relevant professionals as to Dr Maiocchi’s performance as a trainee, including Drs Wilson and Lyndon.
Secondly, Dr Jurd is a highly qualified and experienced medical professional, in relation not only to the requirements of the practice of psychiatry but also as a supervisor of trainees. There is no need to repeat the findings I have made above regarding Dr Jurd’s impressiveness as a witness.
Thirdly, I find that Dr Jurd was not motivated, informed or in any way influenced by Dr Maiocchi’s national or ethnic origin in respect of the actions he took which affected her. On the contrary, I find that at all times Dr Jurd was endeavouring to assist Dr Maiocchi to progress through the College’s training program, including by having her act in accordance with the second remediation plan.
Fourthly, I consider that all of Dr Jurd’s conduct of which Dr Maiocchi complains was in fact reasonable, professional and objectively well considered. To the extent that Dr Maiocchi pressed her claim against Dr Jurd of indirect discrimination, I find that the requirement that she comply with the second remediation plan was reasonable in all the circumstances and that, in any event, it did not have the effect of impairing any relevant human right of Dr Maiocchi’s.
Finally, I find that Dr Jurd performed his role appropriately and with exemplary professionalism. The serious allegations made against him are without any evidentiary foundation.
(iii) The College
In view of the absence of any adverse findings in respect of Drs Wilson or Jurd, no issue arises as to the College’s vicarious liability for their conduct. The allegations against Drs Wilson and Jurd have not been established. Accordingly, it is unnecessary to consider and determine whether or not the College (or the NSLHD) is vicariously liable for their conduct.
Conclusion
I do not doubt the sincerity of Dr Maiocchi’s sense of grievance in relation to the matters which have given rise to these proceedings. The Court is not lacking in sympathy for the position in which Dr Maiocchi now finds herself and the severe impact the events have had on her career and personal life. Her frustration and dissatisfaction with the events which resulted in her traineeship failing are genuine. However, having now listened at some length to Dr Maiocchi’s evidence and submissions I am left with an abiding impression that her real grievance lies with the correctness of the clinical judgments and assessments of her colleagues, including but not limited to Dr Wilson. Dr Maiocchi pursued a range of complaints with various bodies and institutions, including complaints of racial discrimination to the Commission. My considered assessment is that Dr Maiocchi has made strained and unsubstantiated allegations of direct and indirect discrimination under the Act. I have no hesitation in concluding that Dr Maiocchi has failed to discharge the burden which she carries of establishing on the balance of probabilities and to the Briginshaw standard her various serious allegations of racial discrimination, I also find that the conduct of which she complains, as specified in the Statement of Issues, does not amount to direct or indirect discrimination for the purposes of that legislation. Accordingly, her application must be dismissed.
It is unnecessary, therefore, to rule on other issues, the relevance of which were dependent on Dr Maiocchi making good her claims of racial discrimination against either or both Dr Wilson and Dr Jurd. In particular, it is unnecessary to rule on the relevant submissions of the respondents relating to such matters as the College’s vicarious liability, causation, whether Dr Maiocchi has established any loss which would attract an award of damages or whether she is entitled to exemplary or aggravated damages. None of these matters arise because the base allegations against both Dr Wilson and Dr Jurd that each of them engaged in conduct which is in contravention of either s 9(1) or (1A) of the Act are, on the evidence, groundless.
I can indicate, however, that I have considered each of these additional matters and, if it had been necessary for them to be ruled upon, each of them would have been determined against Dr Maiocchi. On the issue of costs, there was no dispute that they should follow the event.
Orders will be made accordingly.
I certify that the preceding three hundred and ninety-seven (397) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 5 February 2016
- AGLC
- Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4) [2016] FCA 33
- Case
- [2016] FCA 33
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case were whether the conduct of Drs Wilson and Jurd constituted direct or indirect discrimination, and if the College was vicariously liable for any such conduct. Dr Maiocchi argued that her complaints of discrimination were based on her race, which she believed was the root cause of the bullying and harassment she experienced. The College, on the other hand, maintained that the conduct in question did not amount to discrimination and that it had taken all reasonable steps to prevent such conduct. Furthermore, the College argued that it was not vicariously liable for the actions of Drs Wilson and Jurd as they were not its employees or agents.
The Court found that Dr Maiocchi had not discharged her burden of proving her allegations of racial discrimination to the Briginshaw standard. The Court observed that Dr Maiocchi's grievances seemed to stem more from the clinical judgments and assessments made by her colleagues rather than discriminatory conduct. Consequently, the Court concluded that the conduct of Drs Wilson and Jurd did not constitute direct or indirect discrimination as defined in the Racial Discrimination Act. As a result, the Court dismissed Dr Maiocchi's application, finding that her claims were unsubstantiated. The Court also noted that it was unnecessary to address other issues such as vicarious liability, causation, and potential damages, as the foundational allegations of discrimination had not been substantiated.
The Court ordered that the originating application filed by Dr Maiocchi on 15 June 2012 be dismissed and that Dr Maiocchi pay the costs of the first, second, third, and fourth respondents as agreed or assessed.
Orders
Orders of the court
1. The originating application filed on 15 June 2012 be dismissed.
2. The applicant pay the costs of the first, second, third and fourth respondents as agreed or assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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