Ms Vicki Stephenson v Ramsay Health Care Australia Pty Ltd T/A Nambour Selangor Private Hospital

[2011] FWA 5842

[2011] FWA 5842

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Vicki Stephenson
v
Ramsay Health Care Australia Pty Ltd T/A Nambour Selangor Private Hospital
(U2010/1625)

COMMISSIONER ASBURY BRISBANE, 1 SEPTEMBER 2011

Application for unfair dismissal remedy - Allegations Misconduct - Failure to comply with policies and procedures - Differential treatment of other persons involved in the same incident - Employee engaged in misconduct - Factors raised in mitigation not sufficient to outweigh misconduct - Dismissal not unfair - Application dismissed.

BACKGROUND

[1] This is an application to Fair Work Australia (FWA) by Ms Vicki Stephenson for an unfair dismissal remedy, under s. 394 of the Fair Work Act 2009 (the Act). The respondent is Ramsay Health Care Australia Pty Ltd (RHC) trading as Nambour Selangor Private Hospital (NSPH). Ms Stephenson was employed as a Midwife from 24 January 2005 until her dismissal on 24 September 2010. Ms Stephenson has been a nurse for approximately 25 years and holds an Advanced Diploma in Nursing - Midwifery. Prior to her employment at NSPH Ms Stephenson held various positions as a Midwife at Royal Brisbane and Women’s Hospital, Nambour General Hospital and the Sunshine Coast Private Hospital. 1

[2] The application was made on 7 October 2010, within the time required in s. 394(2) of the Act. Ms Stephenson is a person protected from unfair dismissal as defined in s. 382 of the Act. NSPH is not a small business and the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code is not relevant. The dismissal was not a redundancy.

[3] The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s. 399 of the Act and the views of the parties. Both parties sought to be legally represented, and permission was granted on the basis that it was considered that such representation would enable the matter to be dealt with more efficiently taking into account its complexity and that issues of fairness did not arise.

[4] Evidence in support of the application was given by Ms Stephenson on her own behalf 2 and by:

• Mr Mark Desmond O’Connor, Servicing Organiser employed by the Australian Nursing Federation and the Queensland Nurses’ Union of Employees; 3



• Mr Luke Tiley, Solicitor employed by Hall Payne Lawyers; 4 and



• Dr Robert Lattik, who gave evidence pursuant to a Notice to Attend.

[5] Evidence for RHC was given by:

• Ms Jillian Eadie Registered Midwife since March 2007 employed by NSPH since August 2009; 5



• Ms Ann Lawler, Registered Nurse since 1979, employed by NSPH since 2003, After Hours Hospital Co-ordinator;



• Mr Shane Mitchell, Chief Executive Officer of Nambour Selangor Private Hospital since August 2009; 6 and



• Ms Sue Power, Director Clinical Services NSPH. 7

LEGISLATION

[6] By virtue of s. 385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable; ..” and

[7] In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account procedural and substantive matters set out in s. 387 of the Act as follows:

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) and;
(b) Whether the person was notified of that reason; and
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters FWA considers relevant.

[8] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 8 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts9, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.10 In determining whether a reason is valid:

“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 11

[9] The conduct which gave rise to Ms Stephenson’s dismissal was said by RHC to be a breach of a number of policies and procedures in relation to persons with credentials to provide medical treatment and the administration of medications. The law in relation to when a breach of a policy, procedure or direction of the employer will constitute a valid reason for the dismissal of an employee was collected in a decision of a Full Bench of the Australian Industrial Relations Commission in Woolworths Limited (t/as Safeway) v Cameron Brown 12 and relevant principles can be summarised as follows:

• Whether a breach of an employer’s policy automatically gives rise to a valid reason for dismissal, is dependent on the character of the policy and the nature of the breach. 13



• Refusal to comply with a policy that is illegal, unreasonable or does not relate to the employment or matters affecting the work of the employee, will not constitute a valid reason for dismissal. 14



• An employee who knowingly breaches a lawful and reasonable policy, the importance of which has been stressed by the employer, and where it has been made clear that a breach will result in dismissal, will have difficulty making out an argument that there was no valid reason for dismissal. 15



• A dismissal for breach of a policy may be unfair where the employee honestly and reasonably contests the policy so that failure to follow it is not wilful disobedience of a lawful order. 16



• Where breach of policy or failure to follow a direction provides a valid reason for dismissal, the dismissal may be unfair where the employee was ignorant of the policy, the dismissal is a disproportionate response, there has been inconsistent application or the policy is being applied in a discriminatory way or for an ulterior purpose. 17

[10] There is a distinction between neglect on the part of an employee, in circumstances where on the one hand the consequences are trivial, and on the other, where the consequences are serious and may cause considerable damage. In the former case, neglect may not justify dismissal, and in cases where the results of neglect may be disastrous, the smallest departure from the standard may provide a valid basis for dismissal. 18

[11] The issue of prior non-enforcement or inconsistent application of policies or procedures, was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd  19 where his Honour observed:

“...the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable ... or in determining whether there has been a ‘fair go all round’ ... In particular it is important that the Commission should be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. Obviously ... where there is differential treatment between persons involved in the same incident the Commission can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case.” 20

EVIDENCE

Events leading to the dismissal

Incidents on 11 September 2011

[12] The events that lead to Ms Stephenson’s dismissal revolved around a series of interactions with Doctor Robert Lattik, the husband of a patient, Ms Kimberly West, for whom Ms Stephenson was caring on 11 September 2010, in the capacity of Birthing Midwife. According to Ms Stephenson, Doctor Lattik introduced himself as such, and informed her that he had a private arrangement with Doctor Frank and that Doctor Frank would act as Ms West’s anaesthetist.

[13] Doctor Frank is an anaesthetist who practices at the Nambour General Hospital, and is accredited to treat patients under the relevant by-laws of RHC. It is not in dispute that Doctor Frank was the anaesthetist on-call at NSPH on 11 September 2011, however, Ms Stephenson said that she did not know this at the relevant time.

[14] It is also not in dispute that Doctor Lattik, is an anaesthetist at the Nambour General Hospital, and was not accredited under the relevant by-laws of RHC to treat patients at NSPH. What is in dispute is whether Ms Stephenson took reasonable steps to establish Doctor Lattik’s qualifications and credentials and to prevent Doctor Lattik from intervening in the care of his wife.

[15] Ms Stephenson maintained that she knew that Doctor Lattik was an appropriately qualified anaesthetist by the way that he interacted with Doctor Frank. Ms Stephenson agreed under cross-examination that she could have easily looked at a list of Doctors accredited to practice at NSPH, but did not do so. Ms Stephenson also agreed that she could have telephoned Nambour General Hospital to verify Doctor Lattik’s qualifications, but did not do so.

[16] Doctor Lattik said that he suspected he would have introduced himself to Ms Stephenson by name, and did not recall specifically whether he told Ms Stephenson that he was a doctor at that point. In relation to the arrangement with Doctor Frank, Doctor Lattik said that he and his wife did not organise to have their own anaesthetist. When they arrived at NSPH he saw Doctor Frank in the corridor and Doctor Frank mentioned that he was the anaesthetist on-call that day. Under cross-examination, Doctor Lattik said that if he told Ms Stephenson that he had a private arrangement with Doctor Frank, it was in the context that Doctor Frank, as the anaesthetist on-call that day, was happy to treat the wife of a colleague and friend.

[17] At approximately 1030 hours, Ms Stephenson was informed by Doctor Lattik that Ms West had decided that she wanted an epidural, and that he had contacted Doctor Frank to make the arrangements for the epidural to be administered. Doctor Lattik confirmed in his evidence that he did telephone Doctor Frank to advise that Ms West wanted an epidural.

[18] Ms Stephenson informed Doctor Lattik that she would contact Ms West’s treating obstetrician, Doctor Orford. When Doctor Orford returned Ms Stephenson’s call, he told her that he knew about the epidural and that it was fine, and that he had just spoken to Doctor Frank. Ms Stephenson said that she realised that Doctor Lattik must have telephoned Doctor Frank, because Doctor Orford knew about the epidural. Ms Stephenson then arranged for Ms West to be moved to the birthing suite, in accordance with the usual practice for caring for patients who are receiving epidurals. Ms Stephenson agreed under cross-examination that the usual process in these circumstances would have involved her contacting the obstetrician, who would organise an anaesthetist, so that it would be a “medical to medical” referral.

[19] Ms Stephenson then contacted the NSPH Registered Medical Officer (RMO) to have a canula placed for the purposes of the anaesthetist administering the epidural when he arrived at the hospital. The RMO administered a canula to Ms West. While he was doing this, Doctor Lattik made a comment about the gauge of the needle he would use on obstetric patients. Doctor Lattik said that he recalled telling the RMO that he had bad luck that day because he was going to be trying to insert an IV canula into a woman who is a nurse and whose husband also happened to be an anaesthetist.

[20] Under cross-examination, Ms Stephenson agreed that in making recommendations to the RMO about needle size, Doctor Lattik was doing something that was not usual for a husband to do, but said that it did not concern her.

[21] Ms Stephenson said that when Doctor Frank subsequently arrived to administer the epidural, he did not introduce himself to Ms West or Doctor Lattik and it was apparent that Doctor Frank and Lattik were friends or at least acquaintances. Doctor Frank inserted the epidural catheter and Ms Stephenson provided him with the drug which he drew up and administered. Doctor Frank set up the epidural so that it was connected to an infusing device which includes a pump and a line. According to Ms Stephenson, the correct practice in relation to epidural anaesthetic is that it is first applied by an anaesthetist, and can then be topped up without the need for the anaesthetist to attend on the patient again. As a midwife, Ms Stephenson is permitted to top up the anaesthetic as prescribed.

[22] Doctor Frank left a prescription for the epidural, setting out guidelines for turning the dosage up or down and for administering additional volumes of the epidural drug if required. Doctor Frank left at approximately 1200 hours, saying: “Just call me if you have any problems”. By that stage, Ms West was in established labour and from that point on it was Ms Stephenson’s role to provide her with one on one care.

First reconnection of epidural line

[23] It is not in dispute that at approximately 1400 hours, Ms Stephenson and Doctor Lattik observed that the line that relayed the epidural from the pump was not correctly connected at the induction point. Ms Stephenson said that she had encountered this situation before, and was familiar with the five minute process required to rectify it. That procedure involves resterilising the end of the catheter - approximately 5 cm - with an alcohol swab, cutting off one to two centimetres in case any bacteria might have made its way into the catheter, and then to reconnecting the line and administering it to the induction point.

[24] Before Ms Stephenson could perform the reconnection, Doctor Lattik intervened and asked Ms Stephenson to get him a pair of sterile scissors. Ms Stephenson complied with this request because she was concerned for Ms West and wanted to alleviate the severe pain that Ms West was in. Doctor Lattik carried out the usual process of reconnecting the epidural line and took approximately 5 minutes to do so.

[25] Ms Stephenson said to Doctor Lattik: “why did you do that? I am perfectly able to do that.” Doctor Lattik responded by saying: “I’m sorry, I guess I was just worried you wouldn’t do it correctly. Ms Stephenson told Doctor Lattik: “ I practice in a very conservative manner and I’ll ensure your wife’s safety.”

[26] Under cross-examination, Ms Stephenson agreed that if Doctor Lattik had not been present, her course of action would have been to telephone Doctor Frank to let him know that Ms West was in increased pain, due to disconnection of the infusion device. Ms Stephenson would then reconnect the tube to the infusion device by performing the same process as was undertaken by Doctor Lattik. Ms Stephenson said that she could not envisage a situation where she would take such a step without talking to either the anaesthetist or the obstetrician, but agreed that she was authorised to reconnect the infusion device without having such discussions.

[27] Ms Stephenson also agreed that when she handed Doctor Lattik the scissors, she presumed he was going to cut the tube, and allowed him to do that, notwithstanding that she could perform the procedure herself. Ms Stephenson said that she did not think it would be unsafe for Doctor Lattik to perform the procedure, but raised the issue with Doctor Lattik afterwards, because she wanted him to be aware that his conduct was inappropriate.

[28] In response to the proposition that she had not been firm with Doctor Lattik and told him to back off, Ms Stephenson said that she was trying to reassure Doctor Lattik that his role is as a support person. In response to the proposition that she was responsible for the care of Ms West and that Ms West’s safety was a priority over concerns about Doctor Lattik’s wellbeing, Ms Stephenson said that the emotional care of Ms West and Doctor Lattik was also important and that both of them were equally important in terms of managing the situation.

[29] Doctor Lattik said that when the catheter became disconnected, Ms Stephenson picked up both ends, and it appeared to Doctor Lattik that she was just going to reconnect the catheter, which would not have been the right thing to do. Before that could happen, Doctor Lattik stepped in and took the connections from Ms Stephenson and asked her to bring the necessary material to undertake the process himself. Doctor Lattik also said that Ms West is a Registered Nurse with a Masters Degree in Pain Management, and understood what he was doing and did not object. Ms Stephenson did not state in her evidence in chief that Doctor Lattik took the connections from her hands in order to perform the procedure.

Administration of Lignocaine by Doctor Lattik

[30] Following the disconnection, a top up of the dosage of epidural drugs is required. Ms Stephenson said that she left the room to obtain equipment to supply gas pain relief for Ms West, while arrangements were made for the epidural to be topped up. After instructing Ms West as to the use of the gas, Ms Stephenson told Ms West and Doctor Lattik that in this situation, she would normally contact the anaesthetist to discuss the topping up of the epidural. According to Ms Stephenson, Doctor Lattik telephoned Doctor Frank almost immediately. Ms Stephenson said that she was in the room with Doctor Lattik while he discussed the top up of the epidural with Doctor Frank but could not hear what Doctor Frank was saying.

[31] According to Ms Stephenson, it was clear that the doctors were talking about administering a different kind of epidural drug. Towards the end of the conversation, Doctor Lattik said: “Xylocaine five mls” and then repeated that twice. After hearing this, Ms Stephenson left the room to obtain that drug for Doctor Lattik to administer to Ms West as prescribed by Doctor Frank. This drug was referred to as “the bolus dose”. Ms Stephenson provided the drug to Doctor Lattik who administered it to Ms West. Under cross-examination, Ms Stephenson said that the appropriate procedure to deal with the top up to the epidural after the disconnection of the line had been resolved, would have involved her contacting Doctor Frank. Ms Stephenson agreed that she could not administer the bolus dose without a direction from the treating doctor.

[32] Ms Stephenson also agreed that she did not telephone Doctor Frank, because Doctor Lattik did so. Ms Stephenson said that she knew Doctor Lattik was talking to Doctor Frank because he referred to the person he was speaking to as “Paul”, but agreed that she had no way of knowing that Doctor Lattik was talking to Doctor Frank.

[33] Further, Ms Stephenson agreed that she did not get a direction from Doctor Frank about the administration of the bolus, but said that she heard Doctor Lattik repeat the medication dosage twice. Ms Stephenson said that she was aware that there is a policy in respect of verbal prescription of drugs, whereby such a prescription was required to be received and confirmed by two appropriately qualified staff. Ms Stephenson agreed that in this case, only one person, Doctor Lattik, received the instruction.

[34] Doctor Lattik said that after the catheter was reconnected, he waited for Ms Stephenson to arrange for the epidural to be topped up. Instead, Ms Stephenson brought Ms West nitrous oxide and attempted other non-pharmacological means of getting Ms West to work through the pain. These did not work, and Ms West was finding the gas disagreeable. Doctor Lattik said at that point, he was not sure why Ms Stephenson did not contact the anaesthetist on-call, and so he took it upon himself to telephone Doctor Frank and ask for his advice.

[35] Doctor Lattik said that he explained the situation to Doctor Frank and asked what he felt should be done or whether he could attend. Doctor Frank could not attend, and gave Doctor Lattik advice over the telephone, which Doctor Lattik fully agreed with. According to Doctor Lattik, Doctor Frank gave a prescription to administer a top up of 5 millilitres of lignocaine 2%. Doctor Lattik told Ms Stephenson and asked her if she had any reservations and whether she wished to speak to Doctor Frank herself. Ms Stephenson declined but Doctor Lattik could not remember what she said. Ms Stephenson brought the ampoule of lignocaine and Doctor Lattik administered it to his wife. Under cross-examination, Doctor Lattik agreed that he got advice over the phone from Doctor Frank on the basis of what Doctor Frank would do in those circumstances, rather than a specific prescription or direction.

[36] Leave was granted for Ms Stephenson to be recalled to respond to the evidence of Doctor Lattik that he had given her the opportunity to speak to Doctor Frank about the lignocaine prescription. Ms Stephenson said that at no time during the conversation with Doctor Frank, did Doctor Lattik offer her the opportunity to speak with Doctor Frank.

Second Reconnection of Epidural Line

[37] At approximately 1500 hours, Ms Eadie entered the birthing suite to take over the care of Ms West. According to Ms Eadie, there was some disorder at that time, and Ms Stephenson told her that the epidural had been leaking and that Robert Lattik was an anaesthetist and had administered a bolus dose of lignocaine under instruction from Doctor Frank, who was his colleague. Ms Stephenson did not appear concerned with the management thus far. Ms Eadie also said that she did not recall Ms Stephenson stepping away at that time, and Ms Stephenson continued to be present for some time as Ms Eadie waited for a formal handover.

[38] According to Ms Eadie, Ms Stephenson and Doctor Lattik attended to Ms West while she carried out a number of tasks associated with checking readings, fluids and stock. It is not in dispute that shortly after Ms Eadie entered the birthing suite, the epidural line again became disconnected. According to Ms Stephenson, Doctor Lattik asked for a pair of sterile scissors and Ms Eadie left the room to obtain the scissors and gave them to Doctor Lattik who performed the procedure of reconnecting the line. Doctor Lattik could not recall who he asked for the scissors, but said that they were brought to him.

[39] Ms Eadie said that she heard discussions between Doctor Lattik and Ms Stephenson, and a call for sterile scissors. Ms Eadie could not recall who asked for sterile scissors first. Ms Eadie also said she was a little shocked and approached the bedside to see what was going on. Ms Eadie asked: “what do you want” and that she believed that Ms Stephenson said that they wanted her to go and get sterile scissors. Under cross-examination, Ms Eadie agreed that it was possible that Doctor Lattik asked for the scissors first.

[40] Ms Stephenson agreed under cross-examination that at the time the second disconnection of the epidural line occurred, she was still the staff member responsible for Ms West and had not handed over to Ms Eadie. Ms Stephenson also agreed that she did not raise concerns with Doctor Lattik at that time or tell him to step down, notwithstanding that he had engaged in the same conduct a few hours before and she had raised it with him then.

Handover between Ms Stephenson and Ms Eadie

[41] There were some contradictions in the evidence of Ms Stephenson and Ms Eadie in relation to conversations during the handover of responsibility between them, for the care of Ms West. The issue in contention was whether Ms Stephenson acted of her own volition in reporting to Doctor Orford and Ms Lawler in relation to concerns about the incidents with Doctor Lattik, or whether any concern on the part of Ms Stephenson was only generated by Ms Eadie raising issues upon entering the birthing suite.

[42] It is not in dispute that after handing over the care of Ms West to Ms Eadie, Ms Stephenson telephoned Doctor Orford to discuss the incidents involving Doctor Lattik. According to Ms Stephenson, this call was made after she reflected on the events of the day and decided that she was not comfortable with the situation involving Doctor Lattik. Doctor Orford said that Doctor Lattik’s conduct was inappropriate and it was then that Ms Stephenson decided to go back into the birthing suite and clarify matters with Doctor Lattik.

[43] Ms Stephenson said that before going into the birthing suite she had a discussion with Ms Eadie, about her concerns that Doctor Lattik was a father acting in the anaesthetist’s role and not as a support person, and told Ms Eadie that she intended to go back into the birthing suite to speak to Doctor Lattik about her concerns. Ms Eadie came into the room with Ms Stephenson, and Ms Stephenson told Doctor Lattik that:

“There seems to be a mix up of roles here in this room. Your role is to be a support person to your wife, if any anaesthetic matters arise, they should be dealt with by Doctor Frank. I understand you are just acting out of concern for your wife, but it is not appropriate that you deal with these matters instead of Doctor Frank.”

[44] According to Ms Stephenson, Doctor Lattik responded by saying that she was right, and that he would step back. Doctor Lattik agreed that there was a discussion between him and Ms Stephenson, during which Ms Eadie was present, where he was told that he needed to remain his wife’s husband and not be the treating doctor. Doctor Lattik said that he responded by saying that this was true and that he would prefer to remain his wife’s husband. However, if there were things that were going on or that he did not quite agree with, or if someone led him to believe that they were not quite sure of what was happening, he would step in before letting something happen that could lead to an untoward event.

[45] Ms Stephenson said that at this point she was content with the state of matters and left the room, as the handover to Ms Eadie was complete. Ms Eadie walked out of the room with Ms Stephenson and they had a conversation at the nurse’s desk. According to Ms Stephenson, Ms Eadie said: “Gee that was good”. Ms Stephenson then asked Ms Eadie whether she was happy to take care of Ms West and Doctor Lattik and Ms Eadie confirmed that she was.

[46] Under cross-examination, Ms Stephenson maintained that her discomfort about the situation that had unfolded with Doctor Lattik was not prompted by anybody else, and rejected the proposition that Ms Eadie raised a concern about the way Doctor Lattik was involved in the treatment of his wife during hand over. Ms Stephenson also rejected the proposition that she stated to Ms Eadie: “Aren’t you happy to care for this couple” and said that she asked Ms Eadie about whether she was happy to care for Ms West and Doctor Lattik because of her concern that things were happening that were inappropriate, and that Ms Eadie was less experienced than other midwives on the afternoon shift. Ms Stephenson maintained that she raised concerns with Ms Eadie about Doctor Lattik’s conduct during the formal handover. Ms Stephenson also said that she interpreted Ms Eadie’s question: “what’s going on” as a general question rather than an expression of concern on the part of Ms Eadie.

[47] Ms Stephenson rejected the proposition that she had only returned to the birthing suite to tell Doctor Lattik to step down, at the insistence of Ms Eadie, and said that she returned to the suite with Ms Eadie so that she had a witness to the discussion with Doctor Lattik and so that there would be no miscommunication, as Ms Eadie was continuing to care for Ms West.

[48] Ms Eadie’s evidence was that Ms Stephenson did not seem concerned about the situation in the birthing suite until Ms Eadie asked her what was going on and why there were no medication orders documented on Ms West’s file. Ms Eadie also said that she stated to Ms Stephenson that she needed to have a much better idea about what was going on before she took over, and asked Ms Stephenson whether Doctor Orford was aware that Dr Lattik had given the bolus dose of lignocaine to Ms West.

[49] According to Ms Eadie, it was only after she raised concerns with Ms Stephenson about what was going on in the birthing suite, that Ms Stephenson asked whether Ms Eadie was happy to take over the care of Ms West. When Ms Eadie said she was not happy to take over the care of Ms West, Ms Stephenson got flustered and said that she would ring Doctor Orford. Ms Stephenson then asked Ms Eadie whether she wanted her to tell Doctor Lattik and Ms West that the situation could not continue and Ms Eadie said: “yes”. Ms Stephenson went back into the birth suite and told Doctor Lattik that he had to step back and focus on supporting his wife. Ms Eadie said that Ms Stephenson did this in an appropriate way.

[50] Ms Eadie said that when Ms Stephenson finished her shift and handed over the patient file, none of what had occurred at that point was documented, but agreed that by the time Ms Stephenson left for the day, notes had been written up. Ms Eadie also agreed that Ms Stephenson had not attempted to hide what had occurred.

Ms Stephenson’s report to Ms Lawler

[51] Ms Stephenson said that following the conversation with Doctor Lattik, she was still not 100% comfortable with the situation, and was particularly concerned because Ms Eadie was a less experienced midwife. Acting upon this concern, Ms Stephenson telephoned NSPH’s after hours co-ordinator Ms Lawler and described the incidents that had occurred that day involving Doctor Lattik. Ms Stephenson told Ms Lawler that Ms Eadie would probably need support and that she might like to check on Ms Eadie to see how she was going.

[52] Ms Lawler said that on the afternoon of Saturday 11 September she received a telephone call from Ms Stephenson who told her that there was a “situation in birth suite”. Ms Stephenson described what had occurred, and upon hearing that the patient’s husband had topped up the epidural, Ms Lawler said: “he did what?” Ms Stephenson replied by saying that it was “ok” and that the patient’s husband is an anaesthetist. Ms Lawler responded by stating that it was not “ok” as the husband is not accredited here and as he was the patient’s husband he should not be treating her. According to Ms Lawler, Ms Stephenson said: “he [Doctor Lattik] spoke to [Doctor] Paul Frank who suggested a top up of the epidural, so he did it for him as he was busy. He rang him on his mobile phone because he works with him at the general.”

[53] Ms Lawler said that someone must have given Doctor Lattik the drug, and Ms Stephenson did not respond. Ms Stephenson told Ms Lawler that she documented everything in the notes. Ms Lawler told Ms Stephenson that she should have contacted her when the situation was happening not afterwards. Ms Stephenson concluded the conversation by telling Ms Lawler that it was alright and she had asked Doctor Lattik to step back which he had agreed to do.

[54] Under cross-examination, Ms Lawler agreed that she was effectively in charge of the hospital at the point Ms Stephenson telephoned her on 11 September 2010, in relation to the incident with Doctor Lattik. Ms Lawler said that she knew that Doctor Frank was the on-call anaesthetist that day, and found out later that he was also on-call at another hospital. Ms Lawler said that this would not have caused her concern had she known about it at the time, and that in the event an on-call specialist is unable to attend a hospital it is the responsibility of that specialist to find another accredited specialist to attend.

[55] Ms Lawler said that Ms Stephenson had not asked her to ensure that Ms Eadie had sufficient support to deal with the situation, and she had called into the suite only as part of her routine rounds of the hospital. Ms Lawler agreed that the patient file indicated the medical care that Doctor Lattik provided to his wife, and that it was possible that if Ms Stephenson had not telephoned her she would not have know about the incident. Ms Lawler also agreed that at times mistakes and errors of judgements are made in hospitals and that it was important these were reported. Further Ms Lawler agreed that not all of the mistakes or errors of judgment resulted in termination of employment. Ms Lawler also confirmed that Doctor Frank is still accredited at NSPH and had probably taken his turn on the on-call roster since Ms Stephenson’s dismissal.

Removal of Epidural Catheter by Doctor Lattik

[56] Ms Eadie said that after the birth, Doctor Lattik removed the epidural catheter from Ms West. According to Ms Eadie, while she was checking the baby and had her back to Ms West, Doctor Lattik asked if he could remove the epidural catheter. Ms Eadie had the baby in her arms, and looked over her shoulder and said: “all right” but that she needed to check the end of the catheter after it was removed. Ms Eadie said that she felt pressured by Doctor Lattik. Doctor Lattik first said that he definitely did not remove the catheter, but then said that it was entirely possible that he did remove the catheter.

[57] In response to a question about whether his wife had objected to him providing treatment to her, Doctor Lattik said that Ms West had not objected, but at one point, wondered if someone was going to get into trouble as a result of him taking over and treating a family member.

Evidence of Ms Cosmai and Ms Davenport

[58] Ms Cosmai was the rostered Maternity Team Leader on 11 September 2010 and commenced her rostered shift at 0700 hours and finished at 1530 hours. One of the roles of the Maternity Team Leader is to be available to assist colleagues when required. Ms Cosmai was aware that Ms Stephenson was caring for Ms West during this shift and the birth suite was approximately 10-20 metres away from where Ms Cosmai was stationed.

[59] Ms Cosmai checked on Ms Stephenson during the shift and Ms Stephenson assured her that Ms West’s labour was progressing normally. At no time during the shift was Ms Cosmai made aware by Ms Stephenson that there were any problems or concerns with Ms West’s care. Ms Cosmai said that she would have been available to assist if required. Ms Cosmai was not cross-examined.

[60] Ms Davenport’s evidence was that she was rostered to work a late shift commencing at 1300 hours on Saturday 11 September 2010, and was allocated to be in charge of the shift and to work in special care nursery with another midwife. At 1500 hours Ms Davenport went to the birth suite to find out how Ms West’s labour was progressing and to see if Ms Eadie needed her support. As Ms Davenport entered the suite she observed Ms Eadie and Ms Stephenson. In response to a question about what was going on, Ms Eadie said that she was uncomfortable with some of the decisions that had been made regarding Ms West’s care. Ms Stephenson also told Ms Davenport about the involvement of Doctor Lattik in his wife’s care and the administration of her epidural.

[61] Ms Davenport said that she advised Ms Stephenson that this was completely inappropriate, particularly as Doctor Lattik did not have visiting rights at NSPH. Ms Davenport asked Ms Stephenson who was Ms West’s anaesthetist, and why he was not involved, and if the after-hours co-ordinator was aware. Ms Davenport told Ms Stephenson that if the after-hours coordinator had not been informed that she should be contacted immediately, and that Doctor Orford should also be contacted. Ms Davenport also told Ms Stephenson and Ms Eadie that they should speak with Ms West’s husband to make it clear that he had overstepped the boundaries, and to clarify his role in his wife’s labour. Ms Davenport was not cross-examined.

The process by which the dismissal was carried out

Investigation

[62] The facts relating to the process by which the dismissal of Ms Stephenson was carried out are not in dispute. Ms Lawler contacted Ms Power, on Sunday 12 September 2010, and informed her of the incident on 11 September. Ms Power contacted Ms Stephenson on 13 September and had a discussion with her about what had occurred. That discussion was recorded by Ms Power in a file note 21. Ms Stevenson said that the discussion occurred on 14 September. Given the existence of the file note I accept that the discussion took place on 13 September 2010.

[63] The file note records that Ms Stephenson told Ms Power that Doctor Lattik had cut and reconnected the catheter and that she had handed him the sterile scissors. The note also records that after telling Doctor Lattik that normally the midwife would ring the anaesthetist, Ms Stephenson witnessed Doctor Lattik calling Doctor Frank. Doctor Lattik then stated that he could give his wife lignocaine 2% 5 mls, and Ms Stephenson checked the dose with Doctor Lattik and he administered it.

[64] Ms Power further records that Doctor Lattik took his wife’s observations and checked the epidural after administering the dose. According to Ms Power’s notes, Ms Stephenson stated that Doctor Lattik had overstepped the mark after he administered the lignocaine and that he was not aggressive, but rather ingratiating and gave the impression: “I’m a doctor and I know what I am doing”. According to the file note, Ms Stephenson stated that she did not realise that Doctor Frank was the anaesthetist on-call for the hospital that weekend, and that Doctor Lattik told her that he had a private arrangement with Doctor Frank.

[65] On or about 13 September 2010, Mr Mitchell and Ms Power spoke to Doctor Orford. Doctor Orford confirmed that he was contacted by Ms Stephenson on 11 September and that he told Ms Stephenson that Doctor Lattik’s conduct was inappropriate, and that he would not be comfortable with a specialist colleague who was the partner of a patient doing any clinical work on his patient, and recommended that Ms Stephenson discuss the matter with Doctor Frank.

[66] On 13 September 2010, Ms Power spoke to Doctor Frank about the situation, and made a note of the discussion. That note indicates that Doctor Frank told Ms Power that Doctor Lattik had asked his advice and he had told Doctor Lattik that he would usually give lignocaine 2% 5 mls in this situation. The note indicates that Ms Power told Doctor Frank that Doctor Lattik had administered the lignocaine and Doctor Frank stated that he thought Doctor Lattik might have done this. Doctor Frank stated that he had not handed over care of Ms West to Doctor Lattik. Ms Power also records that Doctor Frank told her that in retrospect, he should have called the midwives back to confirm the order, and that he was not aware that the midwives had allowed Doctor Lattik to reconnect the epidural line or remove the catheter. 22 Mr Mitchell also spoke to Doctor Frank in the week of 13 September and was told substantially the same information.

“Show Cause” Process

[67] On 15 September 2010, Ms Power advised Ms Stephenson that she was stood down on pay pending the result of an investigation into the incidents of 11 September. Ms Power forwarded a letter to Ms Stephenson on 15 September 2010, requesting that she attend a meeting on 21 September, to show cause why she should not be dismissed. The letter states that Ms Stephenson is encouraged to bring a support person with her to the meeting, and summarises the events on 11 September 2010. It is further stated that:

“By handing a drug to the husband of a patient and allowing him to administer the drug to his wife via an epidural catheter and by allowing and assisting him to reconnect the epidural catheter you have directly contravened the following Ramsay and Nambour Selangor Private Hospital by-laws, policies and guidelines:

• Ramsay Facility By-Laws V 2 March 2008

• Epidural Management Clin 1029

• Epidural analgesia/anaesthesia in Labour Policy 3514

• Administration of Medications Clin 1019.

[68] Those policies and guidelines were appended to the affidavit of Ms Power in these proceedings. 23 The Ramsay Health Care Facility By-Laws deal with the accreditation of health professionals at Ramsay Health Care Facilities, and provide that health professionals may only treat patients at a facility if they are accredited by the Board to do so. The Policy in relation to Epidural Management makes it clear that two registered nurses/registered midwives (RN/RM) or a registered nurse/midwife and endorsed enrolled nurse (EEN) must be present for the drawing up of medication and commencement of the infusion. The policy goes on to state that two authorised personnel must check administration, bolus doses and changes in rates of all epidural infusions.24

[69] The policy in relation to Administration of Medications states that Only Registered Nurses, Enrolled Nurses (medication endorsed) and Medical Practitioners accredited to practice at Caloundra and Nambour Selangor Private Hospitals may administer medications. For the purposes of the policy, Registered Midwives are covered by the term “Registered Nurses”. That policy also states that medication may only be administered on the verbal instruction of a medical practitioner in an emergency situation or on the advice of a telephone order, pursuant to the policy “Verbal Medication Orders. The written version of the policy in relation to Verbal Medication Orders was appended to the written submissions for RHC, and was not in evidence. However, Ms Stephenson gave evidence to the effect that she understood that this policy requires a verbal instruction or prescription to be received and confirmed by two appropriately qualified staff.

[70] On 22 September 2010, Doctor Lattik sent an email to Mr Mitchell, which was copied to Ms Stephenson, Ms Power and Doctor Frank stating that he was “disheartened” to learn that his actions with respect to his wife’s epidural during her labour at NSPH had lead to disciplinary action against Ms Stephenson. Doctor Lattik states that Ms Stephenson should not be disciplined on the basis of his qualifications as an anaesthetist and that he had done what he would have done for any other patient. Doctor Lattik goes on to state:

“With the bolus prescribed by Dr Frank to me, my wife’s pain settled quite quickly and the epidural continued to function until the delivery of our little boy. You may question the ethics of my administering anaesthetic solution to my own wife, however, I did so with the approval of the on-call anaesthetist. I was grateful to Vicki for obtaining the solution for me. My wife is grateful to Vicki and Dr Frank as well, as she found the alternative to the epidural to be quite disagreeable. She has suffered no ill effects from the actions taken that day.”

[71] Ms Stephenson did not receive the show cause letter in sufficient time for her to arrange a support person to attend the meeting so it was deferred until 23 September 2010.

[72] On 23 September 2010, Doctor Frank later sent an email to Mr Mitchell, with a copy to Ms Stephenson and Ms Power, stating that he assumed that there would have been some pressure on Doctor Lattik and Ms Stephenson on 11 September and that he had recommended the administration of 5 mls 2% lignocaine with adrenaline and then had to terminate the conversation because of the immediate requirements of the anaesthetic he was attending to. Doctor Frank also stated that in retrospect it was “odd and inappropriate” that he had not spoken to the midwife attending Ms West, but that:

“...appropriate drugs were given to Ms West and that no harm came of her, in fact I understand the bolus worked in a timely fashion and she was appropriately analgesed. I have learned a lesson to be more vigilant with ensuring that the appropriate staff are involved with the orders. My mitigating circumstances were that I was involved in the pressure of ensuring that the LUSCS that I was anaesthetising for was managed appropriately. As stated, I also feel the midwife would have been under pressure herself.”

[73] Mr O’Connor said that Ms Stephenson showed him a copy of the letter from Doctor Frank on 23 September 2010, prior to the meeting with RHC, and that Ms Stephenson did not hand over that letter during the meeting. There is no evidence that Ms Stephenson tendered the email from Doctor Lattik at the meeting on 23 September and the file note in relation to the meeting makes no reference to that email.

[74] Ms Stephenson attended the meeting on 23 September with her nominated support person, Ms Karen Seville, and Mr Mark O’Connor of the QNU. RHC was represented by Mr Mitchell and Ms Power. At the meeting, Ms Power went through the show cause letter. According to the minutes of the meeting, 25 Ms Stephenson stated that on 11 September 2010 she:

• checked the lignocaine and provided it to Doctor Lattik who administered it to Ms West;



• assisted Doctor Lattik to reconnect the epidural by providing him with sterile scissors;



• was aware of the breaches of the policies outlined in the show cause letter, agreed with them and accepted full responsibility;



• had never faced such an unusual situation in her 25 year nursing career;



• got caught up in the situation because the husband was agitated and the wife distressed;



• knew Doctor Lattik was an anaesthetist from his interactions with Doctor Frank; and



• did not want to leave the birthing suite to make a telephone call to the anaesthetist as she did not want to leave Ms West in pain.

[75] In response to a question about where the medication order came from, Ms Stephenson said that she overheard the telephone discussion between Doctor Lattik and Doctor Frank, and in her clinical experience, what Doctor Lattik asked for was appropriate.

[76] Mr O’Connor said that Ms Stephenson stated that she had heard the phone order for the lignocaine during the conversation between Doctor Frank and Doctor Lattik, but did not say that she had been part of the conversation or specify exactly what she knew of the conversation. It is reported in the minutes that Ms Stephenson raised concerns about the clinical supervision that had been previously imposed upon her by the Queensland Nursing Council and said that she did not feel supported by the hospital in the mentorship provided. These matters were not pressed in this hearing.

[77] The minutes record that Mr O’Connor stated that while some action is required - perhaps a final warning - Ms Stephenson should not be dismissed. This accords with the evidence of Mr O’Connor and Ms Stephenson. Ms Power and Mr Mitchell left the room to consider the statements made by Ms Stephenson. Upon their return, Ms Stephenson was told that RHC believed that there was no option but to terminate Ms Stephenson’s employment. Ms Stephenson was also told that this incident and the report in relation to it would be added to the report to the QNC. Mr O’Connor requested that RHC consider giving Ms Stephenson a final warning in relation to the matter, and that request was refused.

[78] Ms Stephenson’s evidence about the meeting of 23 September was broadly in line with the minutes tendered by Ms Power. Ms Stephenson also said that her concerns in relation to the meeting of 23 September 2010 include:

• Ms Power dramatised the event by stating that the mother or the child could have died;



• There was no discussion of the investigation that had been conducted and how extensive that investigation was; and



• RHC did not contact Doctor Orford to discuss the events with him.

NSPH policies and procedures

[79] Ms Stephenson said that she was not aware of the policies she was said to have breached, and they had not previously been brought to her attention. Ms Stephenson also said that she had not received any training in relation to those policies and had never really had any experience at NSPH in relation to their application to a particular incident. Ms Stephenson maintained that her actions were taken to urgently attend to Ms West’s needs and for that reason she did not consider whether Doctor Lattik had breached that policy by administering care to a patient whilst not being accredited at NSPH. Ms Stephenson also maintained that she did not ask Doctor Lattik to treat his wife and that at all times, she was a person accredited to provide care, so could not have breached the policy.

[80] Under cross-examination Ms Stephenson said that there is a difference between policies being available and readily accessible. Ms Stephenson agreed that:

• the policies are in folders as well as being on an intranet site;



• she did not look at the polices in September 2010 until the meeting on 23 September after the incidents involving Doctor Lattik had occurred; and



• before the meeting on 23 September she read the policies and understood what was in them.

[81] Ms Stephenson also agreed that there is a policy in relation to verbal instructions or prescriptions for medications requiring receipt and confirmation by two appropriately qualified staff. Ms Stephenson also agreed that there is a general policy dealing with the administration of medication by non-accredited personnel and that commonsense dictates that this is not allowed, and that she did not need a policy to tell her that.

[82] Under cross-examination, Ms Power agreed that the circumstances on 11 September 2010 were unusual in that although many doctors’ wives have babies at NSPH, it is rare for those doctors to seek to intervene in the care of their wives and to do so in an assertive fashion. Ms Power also agreed that it is rare for doctors in such circumstances to have the attitude that they would step back, as long as they did not see a mistake being made, at which point they would intervene. Further, Ms Power agreed that she was not aware of any other circumstances where a qualified medical practitioner had sought to intervene in the care of his wife during labour either at NSPH or otherwise during her career.

Professional conduct matters

[83] It is apparent that the fact that Ms Stephenson had previous professional conduct matters on her employment record, was taken into consideration in the decision to dismiss her. In relation to those matters, appended to the affidavit of Ms Power was a copy of the findings of the Queensland Nursing Council (QNC) in relation to an earlier incident involving Ms Stephenson which occurred in 2006. 26 Those findings include the following statements:

• The nurse’s assertion that it is within her discretion to depart from policy without qualification is concerning in the context of the events that flowed from that decision;



• The nurse acquiesced in circumstances where the patient needed the advocacy skills of a midwife to advise her and other members of the treating team of the need for appropriate pain relief and appropriate foetal surveillance.

[84] It is concluded that Ms Stephenson’s conduct in 2006 reveals:

• A significant knowledge and/or skills deficit in the area of assessment, planning and evaluation of the maternity patient during labour;



• A lack of understanding about the significance of obtaining informed consent in the midwifery setting;



• A particular knowledge and skills deficit surrounding the requirement to incorporate professional documentation standards within midwifery practice;



• A limited understanding of the advocacy role of the midwife; and




It is also concluded that the conduct is demonstrably lacking in comparison to the expected standards of the profession, and capable of sustaining a charge of misconduct.

[85] Ms Stephenson said that at the time of the September 2010 which led to her dismissal, she was operating under an undertaking given to the Queensland Nursing Council in relation to an earlier incident in 2006. According to Ms Stephenson that incident concerned her handover to another midwife who cared for a woman in labour who gave birth to a baby who subsequently died. Ms Stephenson maintained that no finding was made against her in relation to this incident and she gave the undertakings to the QNC in an effort to resolve the matter and move forward. The three conditions of the undertaking were that Ms Stephenson:

• Establish a mentor relationship and be supervised by that mentor for a period of six months in births;



• Attend an assertiveness course; and



• Undertake continued professional development with the Australian College of Midwives.

[86] Ms Stephenson said that at the time of the September 2010 incident which led to her dismissal, she was acting in accordance with the undertakings and did not breach them. Under cross-examination Ms Stephenson maintained that what she meant by the assertion that no findings were made against her, was that she gave a voluntary undertaking and as a result there were no restrictions on her registration. Ms Stephenson agreed that there is a further investigation being undertaken by the QNC in relation to the incident on 11 September 2010 and that this investigation is pending. Ms Stephenson also said that the QNC did not bring a charge of misconduct against her in respect of the 2006 incident.

[87] Ms Power said under cross-examination that no disciplinary action had been taken against Ms Stephenson by NSPH in relation to the 2006 incident, because it was thought at the time that the scrutiny that Ms Stephenson was placed under by the QNC and the interviews that were part of that investigation were sufficient disciplinary action, as was Ms Stephenson having an undertaking on her licence.

Other relevant matters

[88] Ms Eadie was not dismissed as a result of her part in assisting Doctor Lattik to treat Ms West, and instead, was issued with a warning. Ms Power said in her evidence that the reasons Ms Eadie was issued with a warning rather than being dismissed were:

• Ms Eadie was not directly assisting Doctor Lattik in breach of Hospital policy;



• Ms Eadie is relatively junior and inexperienced in comparison to Ms Stephenson; and



• Ms Eadie does not have a significant (or any) disciplinary history.

[89] Ms Eadie said under cross-examination that her warning related to failing to be assertive, on the basis that when she took over care of Ms West, Doctor Lattik removed the epidural line. Ms Eadie was also required to attend counselling in relation to assertiveness.

[90] Mr Mitchell gave evidence that Doctor Lattik’s actions were reported to the RHC Head Office and to the RHC Medical Advisory Committee. Mr Mitchell did not report Doctor Lattik to any external agency such as the Health Practitioners’ Regulatory Authority, on the basis of advice from his head office that as Doctor Lattik was not an employee of RHC, there was no obligation to report his conduct to such an agency. Mr Mitchell said that Doctor Frank’s conduct was addressed through the Medical Advisory Committee and that the anaesthetist who sits on that committee met Doctor Frank to advise him that he has a responsibility to ensure that practices are followed in accordance with policy and procedure. Mr Mitchell and Ms Power confirmed that a complaint in relation to the matter had been made to the Australian Health Practitioners’ Regulatory Authority in relation to Ms Stephenson’s conduct.

CONSIDERATION

Was there a valid reason for the dismissal related to Ms Stephenson’s conduct (including its effect on the safety and welfare of other employees)?

[91] After considering all of the evidence I am satisfied that there was a valid reason for the dismissal of Ms Stephenson related to the conduct engaged in by Ms Stephenson on 11 September 2010. Regardless of Doctor Lattik’s qualifications, Ms Stephenson knew he was present in the birthing suite in the capacity of husband and support person for his wife Ms West, and not as a treating medical practitioner for Ms West. Ms Stephenson failed to take reasonable steps to independently verify Doctor Lattik’s qualifications or his credentials. On Ms Stephenson’s evidence, her only source of information about Doctor Lattik’s qualifications was that he introduced himself as an anaesthetist; engaged in banter with Doctor Jackson in relation to the placement of the epidural catheter; and interacted with Doctor Frank as a colleague.

[92] Ms Stephenson did not check the list of health practitioners credentialed to provide medical treatment at NSPH. Further, Ms Stephenson did not make any attempt to contact Doctor Frank, to ask him directly what, if any, “private arrangement” he had with Doctor Lattik in relation to the provision of anaesthetic services to Ms West. The explanation for her failure to take these steps was not satisfactory.

[93] Ms Stephenson is an experienced midwife and knew that it was not appropriate to allow a husband acting in the capacity of support person, to intervene medically in the care of his wife during labour. Notwithstanding her lack of understanding about Doctor Lattik’s qualifications and credentials, and what if any arrangement he had with Doctor Frank about the provision of anaesthetic services to Ms West, Ms Stephenson allowed Doctor Lattik to reconnect the epidural line on two occasions, and actively assisted him in this endeavour, by providing the necessary materials and facilitating the provision of scissors by Ms Eadie when the second reconnection was effected. Ms Stephenson was perfectly able to perform this procedure herself, and had authority to do so whether or not she was able to contact Doctor Frank to seek his approval.

[94] I accept that when the RMO inserted the catheter, or when Doctor Frank was present in the birth suite to establish the epidural, Doctor Lattik had not engaged in any inappropriate conduct, and there was no need to check his qualifications. However, at the point when Doctor Lattik intervened to effect the first reconnection of the epidural line, Ms Stephenson should have contacted Doctor Frank to establish his view in relation to the manner in which anaesthetic services were to be provided to Ms West. On Ms Stephenson’s evidence, Doctor Lattik told her that he had a private arrangement with Doctor Frank. At the first sign of any irregularity, Ms Stephenson should have made contact with Doctor Frank to establish exactly what that arrangement was. If Doctor Frank was not available Ms Stephenson could have told Doctor Orford about her concerns. Ms Stephenson had no difficulty discussing these matters with Doctor Frank and Doctor Orford after the event. There is no reasonable explanation as to why she did not have these discussions at the point the incidents occurred.

[95] If Ms Stephenson was concerned about confrontation with Doctor Lattik, she could have contacted Ms Cosmai or Ms Davenport, who were working nearby at all relevant times. There was a telephone in the birth suite which would have obviated the need for Ms Stephenson to leave Ms West unattended. It is irrelevant that Doctor Lattik performed the reconnection of the epidural line in the accepted manner. Quite simply Ms Stephenson should not have allowed him to do so.

[96] There is no evidence that Ms Stephenson was overborne or intimidated by Doctor Lattik. Ms Stephenson did not state in her evidence that Doctor Lattik took the line from her hands. In my view, it is more probable than not, that had Doctor Lattik done this in a forceful manner, Ms Stephenson would have made a statement to this effect, either in the investigation process or in her evidence in these proceedings. There was also no evidence that Ms Stephenson was compelled to assist Doctor Lattik by obtaining the necessary materials for him to reconnect the epidural line, because he took it from her.

[97] Rather, Ms Stephenson’s evidence indicates that she made a conscious decision to allow Doctor Lattik to reconnect the epidural line, and to actively assist him in that undertaking, so as not to upset him and Ms West. Ms Stephenson’s evidence also makes it clear that she decided that it would not be unsafe for Doctor Lattik to perform the procedure. In doing so, Ms Stephenson decided to depart from RHC policy and procedure, in circumstances where that decision was not open to her and should not have been taken.

[98] After Doctor Lattik performed the first reconnection, Ms Stephenson did not tell him that his behaviour was inappropriate and that he should step back. Instead, Ms Stephenson told Doctor Lattik that she was capable of carrying out the procedure. Ms Stephenson should have known that it was totally inappropriate for Doctor Lattik to undertake the reconnection of the epidural line and taken steps to make it clear to Doctor Lattik that he was behaving inappropriately and should immediately desist. In my view, Ms Stephenson’s failure to deal appropriately with Doctor Lattik at this point, led to the situation which later developed.

[99] In the knowledge that Doctor Lattik had behaved inappropriately by reconnecting the epidural line, Ms Stephenson again allowed Doctor Lattik to intervene in the treatment of his wife, by telephoning Doctor Frank to discuss the topping up of the epidural. Ms Stephenson should have made the telephone call to Doctor Frank, or at least spoken personally to Doctor Frank. I did not find Doctor Lattik a credible witness and I do not accept that he offered Ms Stephenson the opportunity to speak to Doctor Frank. However, whether or not Ms Stephenson was offered this opportunity is not relevant.

[100] What is relevant is that Ms Stephenson accepted a partly overheard telephone conversation as a prescription for medication to be administered to Ms West. Ms Stephenson did not hear the prescription directly, and relied on what she heard Doctor Lattik say. Doctor Lattik was not a credentialed staff member of RHC for the purposes of treating patients at NSPH, and to have accepted his instruction to obtain a drug was in breach of RHC policy in relation to a telephone prescription requiring confirmation from two appropriately qualified staff. As a result, the drug administered to Ms West by Doctor Lattik was not prescribed in accordance with RCH policy, and may not have been prescribed at all. This is a serious breach of that policy. To compound this breach of policy, Ms Stephenson obtained the drug for Doctor Lattik and allowed him to administer it to Ms West. This is a further incidence of Ms Stephenson acquiescing in the continued inappropriate conduct of Doctor Lattik.

[101] It is also clear that Ms Stephenson assisted Doctor Lattik to effect the second re-connection of the epidural line. At the point the second reconnection of the epidural line was effected by Doctor Lattik, Ms Stephenson was responsible for the care of Ms West, and had not handed that responsibility over to Ms Eadie. Regardless of whether it was Ms Stephenson or Doctor Lattik who first asked Ms Eadie to bring sterile scissors, it is clear that Ms Stephenson made such a request. Ms Eadie was a less experienced midwife, who had only recently entered the birthing suite, in circumstances where there was “disorder”. Ms Eadie was not aware of what had occurred prior to her entering the birthing suite. Ms Stephenson had direct knowledge of Doctor Lattik’s earlier inappropriate behaviour and notwithstanding that, facilitated his continuing engagement in such inappropriate behaviour.

[102] Despite speaking to Doctor Lattik about his behaviour after the first reconnection of the epidural line, Ms Stephenson said nothing further when Doctor Lattik administered the bolus and undertook the second reconnection of the epidural line. It is clear that Doctor Lattik needed to be pulled into line and told in no uncertain terms to step back and assume his proper role as support person for Ms West. It was Ms Stephenson’s responsibility to undertake that task personally, or to ensure that it occurred by making contact with either of the treating medical practitioners or a more senior NSPH staff member.

[103] There are very good reasons why hospitals have accreditation processes to accredit Doctors to provide care to patients. Policies and procedures relating to the administration of medications and treatment are established for the protection of both hospitals and patients. There are also very good reasons why support persons are not permitted to intervene in the care of patients and why doctors should not treat their own family members, other than in cases of emergency.

[104] The breaches by Ms Stephenson had serious consequences. Ms Stephenson was responsible for the care of Ms West and her child. That care was required to be provided in accordance with the established policies and procedures of RCH. Failure on the part of Ms Stephenson to provide care to Ms West and her child in accordance with the established policies and procedures of RCH exposed Ms West, the child and RCH to significant risk.

[105] It is not to the point that appropriate medication and treatment was given to Ms West and that Ms West and her baby suffered no adverse consequences. I do not accept the submission that the fact that the treatment administered to Ms West on 11 September 2010, was in keeping with best medical practice, and was administered with Ms West’s fully informed consent, is a mitigating factor. That no adverse consequences were suffered by Ms West and her baby was a matter of good luck rather than good management. The ends do not justify the means, and the serious consequences of Ms Stephenson’s conduct outweigh the fact that there were no adverse consequences. I am also unable to accept that Ms West could consent to medical treatment in breach of NSPH policies and procedures. Ms West was a patient, and Ms Stephenson was responsible for her care. Ms West’s consent or otherwise to a breach of NSPH policy is irrelevant.

[106] I am unable to accept that Ms Stephenson’s lack of knowledge about specific policies and procedures at the point she breached them, is a matter that mitigates the seriousness of her misconduct. Ms Stephenson knew that non-credentialed persons were not permitted to treat patients at NSPH; medication was required to be prescribed and administered in a certain way; support persons should not intervene in treatment of patients; and that generally, doctors should not treat their own family members, other than in emergency. In short, the matters that such policies and procedures are designed to address are so obvious, that they “go without saying”. I accept that technically there was no policy dealing with a situation whereby a non-credentialed doctor might treat a family member who is a patient at NSPH. However, in my view, that such a practice is highly undesirable and should not occur, is so obvious that a policy is not required.

[107] I accept that the circumstances Ms Stephenson found herself in on 11 September 2010 were unusual. Doctor Lattik’s conduct was completely inappropriate and not that which would have been expected from a medical practitioner. I also accept that Ms West was in pain and Doctor Lattik was agitated. However, Ms Stephenson is an experienced midwife who is accustomed to dealing with these types of issues. I am also of the view that if Ms Stephenson needed any assistance to deal with the events which arose on that day, there was support readily available, and her failure to seek assistance was not adequately explained.

[108] The overwhelming impression from Ms Stephenson’s evidence is that she acquiesced in what she knew to be inappropriate conduct on the part of Doctor Lattik, so that she would not upset him and Ms West. In doing so, Ms Stephenson made her own assessment that it was appropriate to depart from RHC policies and procedures. I do not accept that Ms Stephenson was simply an accessory to breaches of NSPH policies and procedures by Doctor Lattik, as was contended on her behalf. Ms Stephenson was the person in the birthing suite responsible for ensuring that the policies and procedures were adhered to and was responsible for taking appropriate action to ensure that this occurred.

[109] I have also given consideration to the fact that Ms Stephenson did not tell Doctor Lattik to step down until the end of her shift. Ms Stephenson’s evidence to the effect that she decided of her own volition to tell Doctor Lattik to stand down, was not plausible. There were inconsistencies in the train of discussions with Ms Eadie, described by Ms Stephenson in her evidence. Ms Stephenson said nothing to Doctor Lattik about his role as a support person or that he should step back and stop providing medical treatment to Ms West, until Ms Eadie entered the birthing suite, and voiced concerns about what was occurring to both Ms Stephenson and Ms Davenport.

[110] When the evidence of Ms Eadie and Ms Stephenson is considered, it is more probable that Ms Stephenson was motivated to report Doctor Lattik’s behaviour by the fact that Ms Eadie raised concerns about what had taken place in the birthing suite, than it is that Ms Stephenson decided of her own volition, that she should report the conduct of Doctor Lattik to Doctor Orford and Ms Lawler.

[111] On the evidence of Ms Stephenson and Ms Eadie, Doctor Lattik did not respond aggressively to being told to step down, and acknowledged that he would do so provided that nothing further occurred in the birthing suite to cause him to be concerned. Doctor Lattik’s attitude at that stage is an indication that firm action should have been taken by Ms Stephenson at the outset. That Ms Stephenson failed to handle the conduct of Doctor Lattik appropriately at the point it occurred, was in my view the significant contributing factor to the situation that developed. The conduct of Doctor Lattik, who was present in the birthing suite as a support person, was the responsibility of Ms Stephenson. It is to be expected that an experienced midwife would have the necessary skills to recognise and deal with that conduct, or to obtain assistance to do so. Ms Stephenson failed in her duty to Ms West and to RCH in this regard.

Was Ms Stephenson notified of the reason for her dismissal?

[112] It is not in dispute that Ms Stephenson was notified of the reason for her dismissal. The evidence clearly establishes that the reason was set out in the correspondence of 15 September and discussed at the meeting of 23 September 2010.

Was Ms Stephenson given an opportunity to respond to the reasons for her dismissal?

[113] Ms Stephenson’s dismissal was related to her capacity or conduct, and she was given an opportunity to respond to those matters at the meeting of 23 September 2010. It is also the case that the minutes establish that Ms Stephenson’s responses were considered, as were the arguments put on her behalf in relation to mitigation and for an alternative to dismissal.

Was there any unreasonable refusal by NSPH to allow Ms Stephenson to have a support person present to assist at any discussions relating to the dismissal?

[114] Ms Stephenson had a support person present to assist her in discussions relating to the dismissal. Ms Stephenson was also assisted by a representative of the QNU. Further, the meeting was deferred to ensure that Ms Stephenson had such support and assistance.

Was Ms Stephenson warned about unsatisfactory performance before the dismissal?

[115] While I accept that Ms Stephenson had not been warned about unsatisfactory performance by her employer, this was not the first occasion upon which issues of the kind that arose on 11 September, had been raised with Ms Stephenson. In 2006, while employed at NSPH, Ms Stephenson was involved in an incident which resulted in findings being made by the QNC, including that Ms Stephenson:

• Elected to disregard established policies without consultation;



• Asserted that to depart from policy was within her discretion;



• Acquiesced in circumstances where the patient needed the advocacy skills of a midwife; and



• Had a limited understanding of the advocacy role of the midwife.

[116] In the present case, Ms Stephenson elected to disregard established policies and procedures and failed to consult with any of her colleagues about her decision to do so. Ms Stephenson also justified her conduct by reference to the wellbeing of Doctor Lattik when it was Ms West who was her patient. Ms Stephenson acquiesced in the conduct of Doctor Lattik when she should have advocated on behalf of Ms West for proper procedures to be followed in treatment and administration of medication. Ms Stephenson was not formally warned about these matters by RHC in 2006, because it was considered that she had already undergone disciplinary action as part of the QNC process.

[117] In these circumstances it was not unreasonable for Ms Power and Mr Mitchell to consider that Ms Stephenson had been warned about conduct of a similar kind to that which occurred on 11 September. It was also not unreasonable for them to form the view that Ms Stephenson should have known better, than to allow the situation on 11 September 2010 to develop, as a result of that earlier incident. In my view, the process that Ms Stephenson went through in 2006, and the findings that were made, should have alerted her to the repercussions of departing from policy and procedure.

To what degree was it likely that the size of NSPH’s enterprise and the absence of dedicated human resource management practitioners would impact on the procedures followed in effecting the dismissal?

[118] These matters are not a relevant consideration in the present case.

Other relevant matters

[119] In this case, considerations arise about whether there has been an inconsistent application of policies and procedures as between Ms Stephenson on the one hand, and Ms Eadie, Doctor Lattik and Doctor Frank, on the other hand. Ms Eadie received a warning in relation to events on 11 September 2010. Doctor Lattik does not appear to have had any action taken against him in relation to his conduct. Doctor Frank has been dealt with through internal committees of RHC.

[120] I accept the submission on behalf of NSPH that Ms Eadie was not directly assisting Doctor Lattik in breach of hospital policy; is relatively junior; and does not have a disciplinary history. Ms Eadie was not responsible for the care of Ms West at the point of the second reconnection of the epidural line. I am also of the view that Ms Eadie stepped into a situation which was of Ms Stephenson’s making. Ms Stephenson had allowed Doctor Lattik to behave inappropriately for the entire time she was in the birthing room with him, and I have no doubt that there was disorder when Ms Eadie arrived that made her situation more difficult than it otherwise should have been.

[121] It is also the case that Ms Eadie raised concerns about what had gone on that day, and Ms Stephenson took no steps to report the incidents to persons in authority until the point they were raised by Ms Eadie. Ms Eadie’s conduct in handing the scissors to Doctor Lattik and allowing him to remove the catheter from Ms West, is less serious than that of Ms Stephenson, and it was entirely appropriate that it resulted in a warning rather than the dismissal of Ms Eadie.

[122] I have concerns about how the conduct of Doctor Lattik was dealt with by RHC. Even making allowances for the fact that Doctor Lattik’s wife was in labour, his conduct was completely inappropriate and not that which would be expected from a specialist medical practitioner. Essentially, Doctor Lattik stepped in and treated his wife. There was no emergency and if Doctor Lattik had concerns about the treatment of his wife, he had other options besides treating Ms West himself, given that she was in a hospital, in which she had chosen to give birth. Doctor Lattik did so in circumstances where he was not credentialed to treat patients at NSPH and where approval would have been required for him to treat Ms West even if he had been credentialed. Of particular concern is that Doctor Lattik administered a medication to his wife that was not prescribed or ordered by Doctor Frank in accordance with RHC policy. Indeed, it is arguable that the medication administered by Doctor Lattik was not prescribed at all.

[123] Given the seriousness of Doctor Lattik’s conduct, it is surprising that he was not reported by RCH to an external agency. This is particularly so given that Ms Stephenson was reported for her part in the events of September 2010. However, I am of the view that comparing the approach taken by RHC to the conduct of Doctor Lattik to that of Ms Stephenson, would be to compare apples with pears. Doctor Lattik was not an employee of RHC and I am unable to accept that differential treatment of Doctor Lattik is a factor that should weigh heavily in considering whether Ms Stephenson’s dismissal was unfair.

[124] Similarly, Doctor Frank was an on-call specialist rather than an employee of NSPH, and the decision to deal with Doctor Frank’s part in the incidents of 11 September 2010 by way of an internal review process conducted by his peers, is not a factor that makes Ms Stephenson’s dismissal unfair.

[125] I have given consideration to the fact that notwithstanding that Ms Stephenson engaged in misconduct, RHC paid her five weeks salary in lieu of notice. I have also considered the personal circumstances of Ms Stephenson, and difficulties she will face as a consequence of losing her employment because of these matters. In light of the conduct engaged in by Ms Stephenson, and that issues of procedural unfairness do not arise in this case, the consequences of the dismissal do not make it unfair.

CONCLUSIONS

[126] After considering and weighing all of the evidence in this case at some length, I have concluded that the dismissal of Ms Stephenson was not unfair. There was a valid reason for the dismissal in that Ms Stephenson engaged in misconduct. That misconduct involved breaches of policies and procedures in relation to the treatment of and administration of medications to, patients of NSPH. Ms Stephenson understood the essential terms of the procedures and the rationale that underpinned them. The procedures were reasonable and lawful. Ms Stephenson did not have a reasonable excuse for failing to comply, and made a conscious decision to disregard those procedures. There was no reasonable basis for that decision. The consequence of the failure to comply with policies and procedures was that a patient and NSPH were exposed to risk. In the circumstances of this case, where policies were breached in the provision of medical treatment to a woman in labour, the fact that there were no adverse consequences, is irrelevant.

[127] The process followed by NSPH to effect the dismissal was not unfair. There are no mitigating circumstances that are sufficient to counter the gravity of the misconduct.

[128] The application is dismissed. An Order will issue to that effect with this Decision.

COMMISSIONER

Appearances:

C Massy forthe Applicant.

J C Dwyer for the Respondent.

Hearing details:

2011.

Brisbane:

17 and 18 March.

 1   Exhibit 1 - Affidavit of Vicki Karen Stephenson Appendix “VKS1”.

 2   Affidavits Exhibits 1, 2 and 3.

 3   Affidavit Exhibit 5.

 4   Affidavit Exhibit 6.

 5   Affidavit Exhibit 7.

 6   Affidavit Exhibit 9.

 7   Affidavit Exhibit 10.

 8   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 9   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 10   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 11   Walton v Mermaid (1996) 142 ALR 681 at 685.

 12   Woolworths Limited (t/as Safeway) v Cameron Brown (C2005/3430 PR963023) per Lawler VP, Lloyd SDP and Bacon C.

 13   Potter v Workcover Corporation (2004) 133 IR 458.

 14   Woolworths v Cameron Brown op. cit. at [34].

 15   Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd[2009] AIRC 893.

 16   Adami v Maison de Luxe Ltd (1924) 35 CLR 143.

 17   C2005/3430 PR963023 at [36].

 18   Sexton v Pacific National (ACT) Pty Ltd PR931440 at [18] - [20].

 19   Ibid.

 20 Ibid at [36].

 21   Exhibit 10 Statement of Sue Power “SP1”

 22   Exhibit 10 Affidavit of Sue Power Appendix “SP6”.

 23   Exhibit 10 Affidavit of Sue Power Appendix “SP6”.

 24   ibid.

 25   Exhibit 10 Affidavit of Sue Power “SP5”.

 26   Exhibit 10 Affidavit of Sue Power Annexure “SP7”

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