Ord v State of Queensland (Sunshine Coast Hospital and Health Service)
[2015] QIRC 29
•18 February 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ord v State of Queensland (Sunshine Coast Hospital and Health Service) [2015] QIRC 029 |
PARTIES: | Ord, Geraldine v State of Queensland (Sunshine Coast Hospital and Health Service) |
CASE NO: | TD/2013/81 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 18 February 2015 |
HEARING DATE: | 1 to 5 September 2014 |
MEMBER: | Industrial Commissioner Thompson |
ORDERS : | 1. Application granted. 2. Applicant be reinstated to her former position as a Registered Nurse without prejudice to her former conditions of employment. 3. Applicant's continuity of employment is maintained. 4. Respondent is to pay to the Applicant lost remuneration from the date of the dismissal until the date of reinstatement. 5. Applicant is to provide to the Respondent all details of income and financial benefit earned or received by her from 2 September 2013 until the date of reinstatement. This detail must be provided within seven days following recommencement of employment. 6. Applicant's reinstatement is to be effected within 21 days of the release of this decision. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - Dismissal - Witness Evidence - Investigation process - Criminal charges - Charges dismissed - Standard of proof - AHPRA decision - QCAT decision - Allegations and show cause process - Decision making process - Termination harsh, unjust and unreasonable - Application granted - Applicant to be reinstated - Respondent to pay lost remuneration from the date of dismissal until date of reinstatement taking into account income and financial benefit earned in that period. |
| CASES: | Industrial Relations Act 1999, s 74 Public Service Act 2008 Whitehorn v R [1983] 152 CLR 65 Jones v Dunkel [1959] 101 CLR 298 Container Terminals Australia Limited v Phillip Toby [2000] AIRC 97 (Print S8434) Edwards v Guidice [1999] FCA 1836 Mark Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267 Raymond Harris v Gold Coast City Council (D/2010/121) - Decision - < Minister for Health v Drake-Brockman [2012] WAIRC 00150 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Minister for Local Government v Sydney City Council (2002) 55 NSWLR 381 |
| APPEARANCES: | Mr P. Boyce of Butler McDermott Lawyers for the Applicant. Mr A. Scott of Counsel, instructed by Minter Ellison Lawyers, for the Respondent. |
Decision
Background
On 20 September 2013 Geraldine Catherine Ord (Ord) lodged with the Industrial Registrar an application for reinstatement with the Sunshine Coast Hospital and Health Service (SCHHS). The termination of employment which took effect on 2 September 2013 was said to be harsh, unjust, unreasonable and for an invalid reason.
Applicant
Ord
Ord had commenced employment at Nambour Hospital in 2001 as a Phlebotomist and in the period following completed:
· a Certificate IV in Pathology Specimen Collection - 2005; and
· a Diploma of Nursing (Pre-Enrolment) - 11 July 2007.
In July 2007 she was granted enrolment as a nurse and became employed as an Enrolled Nurse on 13 August 2007.
Further in December 2010 she completed a Bachelor of Science becoming a Graduate Registered Nurse on 31 January 2011.
In the course of her employment she was assigned duties in a number of wards, often working extra shifts and other overtime as a consequence of inadequate staff levels. There was assistance provided by her in helping to train staff in the area of blood collection and IV cannulation in addition to regular mentoring of first and second year Registered Nurse students.
Ord gave evidence regarding courses, workshops, self-directed learning packages and mandatory training undertaken whilst employed as a Registered Nurse.
On 19 August 2012 the Queensland Police Service (QPS) attended her place of residence which was the first time she had become aware of the fact she was under investigation. Later that day she was charged by Police with two counts of stealing as a servant and two counts of falsifying records.
An overview of the events that followed the laying of charges included reference to:
· 23 August 2012 - met with SCHHS having to this point continued to work in the Emergency Department without restriction;
· 31 August 2012 - SCHHS advised the Australian Health Practitioner Regulation Agency (AHPRA) had been notified of the allegations against her;
· 17 September 2012 - AHPRA advised it proposed to take immediate action which resulted in Ord having submissions made on her behalf on 26 September 2012 and 6 October 2012;
· 11 October 2012 - AHPRA advised of the imposition of conditions on her registration;
· 2 November 2012 - suspended from work with pay as a result of the AHPRA restrictions - suspension led to significant decrease in remuneration;
· 7 November 2012 - Ord filed application with Queensland Civil Administrative Tribunal (QCAT) for review of AHPRA decision;
· 4 February 2013 - day one - summary hearing of criminal prosecution at Maroochydore Magistrates Court;
· 8 March 2013 - summary hearing completed - all charges dismissed. Order for Prosecution to pay costs totalling $8,036.05;
· 21 March 2013 - correspondence from SCHHS setting out 33 allegations against her regarding her professional conduct with an opportunity to show cause as to why disciplinary action should not be taken against her;
· 12 April 2013 - Ord provided a full response to the allegations;
· 16 April 2013 - correspondence from SCHHS advising of her suspension from duty without pay due to AHPRA prohibiting her undertaking any role requiring direct or indirect clinical patient contact. Ord had been on suspension with pay since 2 November 2012;
· 29 May 2013 - correspondence from SCHHS setting out their findings in relation to the allegations and providing Ord with seven days to show cause as to why her employment should not be terminated;
· 7 June 2013 - Ord provided response to SCHHS correspondence of 29 May 2013;
· 1 July 2013 - correspondence from AHPRA advised SCHHS they proposed to take immediate action and remove conditions imposed on 8 October 2012 and impose new conditions. Ord was given seven days to provide a response. The proposed conditions were identical to previous conditions imposed;
· 8 July 2013 - correspondence sent to AHPRA submitting there was no reason to impose conditions on her;
· 1 August 2013 - correspondence from AHPRA who were considering the imposition of amended conditions offering Ord seven days to provide submissions;
· 2 September 2013 - correspondence from SCHHS advising her employment had been terminated;
· 3 September 2013 - AHPRA advised amended conditions imposed effective from 21 August 2013; and
· 20 December 2013 - QCAT set aside the decision of the AHPRA Board thus removing the conditions on her registration.
In her affidavit of evidence Ord addressed each of the 33 allegations that had been levelled against her in the correspondence of 21 March 2013. The evidence identified the following allegations which were said to have either not been substantiated or not acted upon.
Allegation number Date Comments 3 25 April 2012 unsubstantiated 7 10 May 2012 SCHHS took no further action 8(a) 21 May 2012 SCHHS took no further action 9 22 May 2012 SCHHS took no further action 10 22 May 2012 SCHHS took no further action 11 27 May 2012 unsubstantiated 12 21 June 2012 SCHHS took no further action 13 30 June 2012 SCHHS took no further action 14(a) and (b) 30 June 2012 SCHHS took no further action 16 2 July 2012 SCHHS took no further action 17 3 July 2012 SCHHS took no further action 18 5 July 2012 SCHHS took no further action 19 6 July 2012 SCHHS took no further action 20 20 July 2012 SCHHS took no further action 21 13 July 2012 unsubstantiated 23 14 July 2012 SCHHS took no further action 24 14 July 2012 unsubstantiated 25 19 July 2012 SCHHS took no further action 26 19 July 2012 unsubstantiated 27 19 July 2012 SCHHS took no further action 28 26 July 2012 SCHHS took no further action 29 28 July 2012 SCHHS took no further action 32(a) unsubstantiated 33 SCHHS took no further action
In terms of the remaining allegations, the evidence in chief was as follows.
Allegations 1 and 2 - 21 April 2012 - The allegations related to entries in the drug register about the amount of medication given or received and what was discarded. The incident in question involved a second nurse as well and had been in response to a "verbal or phone order" from a doctor. Such an instruction was said to be not uncommon in the Emergency Department and the entry into the drug register occurs after the doctor had completed the medication chart. On this occasion it was likely the doctor had failed to write the phone or verbal order in the medication chart.
Allegation 4 - 2 May 2012 - the drug register in this case identified two entries for Fentanyl which had been co-signed by another nurse at 07.20 and 08.10 hours. The first entry had not been given and discarded which could have occurred for a variety of reasons (which were identified) and included the possibility of her being relieved by another nurse for a tea break leading to the failure to document.
Ord acknowledged a failure of herself and the other nurse in relation to the first prescription however due to the busy nature of the Emergency Department this inevitably happens at times. In this case both she and the other nurse had made "human errors".
Allegation 5 - 9 May 2012 - The entry regarding Fentanyl had been correctly written in the drug register and co-signed by another nurse. The SCHHS took no further action in relation to this allegation and in the course of their investigation identified an error in Procedure 000604 where incorrect information had been provided to staff in relation to the discarding of the unused portion of drugs. The Procedure was later updated.
Allegation 6 - 10 May 2012 - This allegation relates to two entries in the drug register with the first entry according to Ord being correct and of no controversy the second entry had been signed by another person and the "checked by" column signature whilst resembling her signature had not been written by her. Ord denied any involvement including the administering of the medication to the patient.
Allegation 8(b) - 21 May 2012 - An amount of 25 mcg of medication was given to a patient from an allocation of 50 mcg and due to the extremely busy environment of the Emergency Department there had emerged a common practice where at times the correct protocol was not observed with the discarded portion later "squirted" into the sharps container in the presence of a team leader.
Allegation 14(b) - 30 June 2012 - The allegation involved another nurse who had administered Fentanyl to a patient for which Ord had no responsibility in terms of the entries in the drug register. There were that day two occasions when she had been requested by the same nurse to administer Fentanyl to a patient as she was not entirely confident or familiar with giving IV narcotics. The issue raised in regards to access to areas by the other nurse in question which had been facilitated by other employees swipe cards was something that occurred when staff from the casual pool worked in the Emergency Department and had not been issued with a swipe cared.
In response to a question over a dosage of Fentanyl having been administered to the patient 15 minutes prior to a patient's discharge, the evidence was that a patient's discharge is in the hands of the doctor who decides whether a patient is fit and well enough to be discharged from the Emergency Department. In most cases, nursing staff are not forewarned of when this will occur.
At times a discharged patient may be required to wait in the corridor of a "waiting area" until their transportation arrives and if a patient required ongoing observations following the administration of intravenous (IV) narcotics it is carried out in an informal manner.
The SCHHS had found Allegation 14(b) substantiated however it was not included in their termination correspondence.
Allegation 15 - 2 July 2012 - The allegation went to Fentanyl being administered to a patient prior to observations being taken. The pain score of 2/10 on the chart indicated an improvement in the pain level following the dosage.
Ord was aware of the process involving observations and if the medical and nursing staff having access to the patients history of observations whilst they are in the Emergency Department. Due to the nature of the Emergency Department nurses use the observations prior to administering Fentanyl but do not always record the observations in the patient's chart as the dynamics are very different there compared to a ward. The SCHHS found that this allegation had been substantiated.
Allegation 22 - 13 July 2012 - In this case a doctor had authorised an order for Fentanyl on the STAT area of the medication chart which left a further dosage of 25 mcg of Fentanyl available if required. Later the patient complained of pain from the first 25 mcg prior to the two hours gap and needed further pain relief. This happens often and the doctor will write up an extra order however they did not on this occasion as there was already a STAT order.
Allegation 30 - 30 - 31 July 2012 - The offences referred to in this allegations were the subject of the hearing in the Maroochydore Magistrates Court where Ord was found not guilty and the SCHHS were ordered to pay her legal costs.
Allegation 31 - 31 July 2012 to 1 August 2012 - The offences referred to in this allegation had suffered a similar outcome to Allegation 30 offences with acquittal and legal costs ordered against the SCHHS.
Allegation 32(b) - Ord relied upon previous responses to Allegations 1-4 and 6.
Ord's evidence was she had followed SCHHS Procedure ID 000604.02 Controlled Drug/Restricted Drugs of Dependence Record Keeping and Checking in a Clinical Ward/Unit Section 3.2.
Given the responses to the allegations Ord considered her termination unfair as it was harsh, unjust and unreasonable.
Under cross-examination Ord was questioned with regards to her evidence around the administering of narcotics and the policy requirements for entries to be made in the drug register. It was acknowledged that for verbal telephone orders from doctors, the nurse who receives the order had the responsibility of writing that order in the medication chart [Transcript p. 1-12]. Ord, in the case in question, was not aware the Procedure 000603 - Medication Management Administration of Medication covered not just telephone verbal orders but verbal orders requiring the nurse to make entries in the chart [Transcript p. 1-13]. In terms of Allegation 1 not only was the order not recorded but the administration of the medication was not recorded in the patient's chart [Transcript p. 1-13].
Ord was familiar with Fentanyl accepting it was a drug of dependence [Transcript p. 1-13]. Allegation 4 related to two entries for 2 May 2012 for 25 mcg orders of Fentanyl with Ord conceding the medication chart had recorded only one order for 25 mcg [Transcript p. 1-15]. In fact there was no record of either dose being administered [Transcript p. 1-15]. Ord agreed the failure to administer Fentanyl should have been documented but failures of this nature were inevitable in the Emergency Department [Transcript p. 1-16]. Ord accepted if there had been a failure to document the administration then the patient could be given a further dose which could result in an overdose [Transcript p. 1-16].
Allegation 6 regarding entries in the drug book on 10 May 2012 had Ord giving evidence that the second signature in the drug register [Exhibit 7] resembled her signature but was not [Transcript p. 14-20]. In terms of the key to the drug cabinet it was her evidence there was only one but it was shared around between Registered Nurses and Doctors [Transcript p. 1-22]. On Procedure 000604 - Medication Management: Controlled Drug/Restricted Drugs of Dependency Record Keeping and Checking in a Clinical Ward/Unit which stated "the key must always be in the personal possession of an 'on duty' delegated authorised staff member…", Ord confirmed her earlier evidence that the key was passed around as standard practice and that on 10 May 2012 it was "hard to say who had the key" [Transcript p. 1-23]. If Ord had administered Fentanyl at 01.40 that morning her signature would have "most likely…but not always" appeared in the drug register [Transcript p. 1-24].
With regards to Allegation 8, Ord accepted she had taken out 100 mcg of Fentanyl and only signed for 50 mcg [Transcript p. 1-24]. The entry showed 50 mcg given and 50 mcg discarded [Transcript p. 1-26]. Ord in her evidence had stated "It is easy to get involved in other procedures and not follow protocol" and was asked if she returned to the Emergency Department whether it was likely these sorts of errors would occur she replied "I don't believe that it would be my intention for that to happen" [Transcript p. 1-27]. The practice of leaving it in the patient or nurse tray was accepted as an "inappropriate practice" but was common practice in the Emergency Department [Transcript p. 1-27].
Allegation 14(b) went to a drug book entry of 25 mcg of Fentanyl being taken out of the drug room at 18.50 hours on 30 June 2012 under the signature of Ord but no record of the drug being administered [Transcript p. 1-28]. Ord's evidence was another nurse administered the drug and it was not her responsibility to record the administration [Transcript p. 1-28]. On a notation by Ord at 18.50 "Eating a meal, then going home, script given to patient" she was unsure if she had witnessed the script being given [Transcript p. 1-30]. Ord accepted the note meant she was aware the patient was about to go home but did not know for sure they would be leaving [Transcript p. 1-31]. It was pointed out to Ord that the time (18.50) she made the note the patient was going home was the time the Fentanyl was taken out of the drug cabinet to which she replied the entry in the drug book had not been correct because the entry and her note were both at 18.50 [Transcript p. 1-33].
Ord, in terms of Allegation 15, did not accept it was inappropriate to administer Fentanyl to a patient with a low pain level of two out of ten [Transcript p. 1-36]. In this case the Fentanyl may have been given prior to observations being taken although in the Emergency Department patients are attached to monitors which means they regularly have observations taken [Transcript p. 1-38].
Allegation 22 related to a patient being administered Fentanyl prior to a two hour expiry time with Ord's explanation being there were two different orders (PRN order and a STAT) and the second dosage was administered on doctor's order [Transcript p. 1-40]. Ord did not accept that the STAT order had expired and been taken over by the PRN order [Transcript p. 1-41]. In a response to the allegation documentation (dated 21 March 2013) Ord had indicated a reference to a Dr Abbas prescribing an extra 25 mcg of Fentanyl was a mistake in that it was the wrong doctor's name [Transcript p. 1-42] however she remembered the situation clearly that the dosage was authorised [Transcript p. 1-44].
In relation to Allegation 30 and 31, Ord acknowledged that an entry on the drug register for 31 July 2012 was signed off by her however there was another for 31 July 2012 which she disputed [Transcript p. 1-46].
Under re-examination, evidence from Ord included:
· transfer procedures from Emergency Department to ward;
· location of three drug registers in the Emergency Department
·medication room;
·"obs" room; and
·drug safe;
· her normal work area was in the "acute area" of the Emergency Department;
· allocated four to five patients which increased when a staff member failed to attend shift;
· evidence in relation to Exhibits 7, 13, 14 and 18; and
· questions over signatures said to be Ord's but disputed by Ord.
SCHHS
The SCHHS called evidence from ten witnesses in the proceedings:
· Jenny Selfe (Selfe);
· Scott Davey (Davey);
· Christine Gamino (Gamino);
· Graham Wilkinson (Wilkinson);
· Kevin Hegarty (Hegarty);
· Amanda Auger (Auger);
· Rod Margetts (Margetts);
· Dr Piotr Swierkowski (Dr Swierkowski);
· Barry McCarthy (McCarthy); and
· Lyn Rowland (Rowland).
Selfe
Selfe, a Nurse Unit Manager of the Medical Assessment and Planning Unit and Transit Unit with the SCHHS was, in the period between April and August 2012, the Acting Nursing Director - Emergency at the SCHHS. The role included:
· managing the flow of patients through the Emergency Department;
· managing nursing staff personnel issues; and
· dealing with patient complaints.
In early May 2012 the Nurse Unit Manager Lisa Rasmussen (Rasmussen) informed her that an audit of the Emergency Department drug register on 2 May 2012 had identified a page had been cut out. She understood that Rasmussen had logged the incident in PRIME, an incident reporting system used by SCHHS and had completed an Ethical Standards Unit Complaint Referral Form in which she identified that approximately 10 ampoules of Fentanyl (100 mcg) appeared to have been missing from the Emergency Departments drug room.
Selfe had contact with Alison Reynolds (Reynolds) regarding the incident who confirmed an internal investigation was occurring. Reynolds's role as Complaints Resolution Manager at SCHHS included liaising with relevant external departments that included the QPS and responsibilities for overseeing internal investigations such as the issue of the missing page from the controlled drug register.
Attached to Selfe's affidavit were emails received from Reynolds on 1 June 2012 which instructed Selfe to remove and secure the drug registers and to attach the page of the controlled drug register prior to the identified missing page.
There was also advice of an initial review of a patient's medical records that had identified some irregularities with records of drugs administered to the patient. The order in question had been signed by Ord.
Selfe undertook an audit of the controlled drug register and described in detail that process which worked methodically from the entries before the missing page and then forward from the missing page. The audit was conducted over a two week period and took significantly more time than a standard audit as she had to explore all possible avenues.
A routine weekly audit of the controlled drug register would typically take a Nurse Unit Manager about 30 minutes to complete and if any issue was identified in terms of an irregularity, there would be contact made with the relevant nurse and if there had been a breach of policy then a Performance Improvement Notice (PIN) could be issued.
In respect of her audit it was evidence that the page removed had been cut out with a sharp instrument and not likely to have accidently fallen out. The missing page may have gone unnoticed if the pages were not numbered. Selfe became aware of a few minor discrepancies in the completion of the data however in her initial review there were no obvious patterns of inconsistent entries.
In taking the process further she obtained every patient chart for those patients having been administered Fentanyl in the page prior to and after the missing page. Each patient chart was reviewed against the drug register and the following matters:
· had a doctor ordered a dose of Fentanyl;
· had the correct dose of Fentanyl been taken from the drug cabinet by the nurse;
· had the dose or doses of Fentanyl been administered to the patient at the right time;
· which nurse had administered the Fentanyl to the patient; and
· was that nurse rostered on for the shift in which their name had been recorded as having administered Fentanyl according to the drug register.
Signatures of staff were compared against the drug register and the Emergency Department's Medication Signature Register for 2011 and 2012. At the conclusion of the audit there were a number of irregularities that included:
· some patients who had been noted on the drug register as having been administered with Fentanyl had indicated that they had no pain or very little pain. Selfe considered that it was unusual that they had been given a Schedule 8 pain management drug as this is very strong;
· there was no Fentanyl order recorded in a patient's chart, but that patient had been recorded on the drug register as having been administered with Fentanyl; and
· the nurse recorded on the drug register as having administered Fentanyl to a patient was not the same nurse recorded in a patient's chart as having administered the Fentanyl.
There was said to be an emergent pattern in that Ord's name came up quite a number of times and there were other staff identified who may not have complied with the relevant policies.
In the case of Ord her signature was not on the Emergency Department Medication Signature Register as she had only commenced in the Department in December 2012. She obtained a copy of Ord's signature from the Ward 4FW register and noticed her signature was quite distinctive and recognisable. From the audit she ascertained that Ord had signed the drug register against a number of records indicating that she had obtained an amount of Fentanyl from the drug room to administer to patients but in respect of those patients there was no record to indicate she had in fact administered the drug. In addition she identified a number of instances where Ord signed the drug register for Fentanyl when she did not have an order for Fentanyl or the patient was without pain or had low levels of pain. In some cases the patient was not an Emergency Department patient.
In all seven nursing staff including Ord were identified as having breached the SCHHS policies in respect of the controlled drug register. It was determined those staff be issued with PINs in respect of their breaches. Five staff received only one PIN which were breaches assessed as "sloppy nursing practices". Each of those staff acknowledged they had failed to comply with the policy and expressed remorse. Another nurse was to receive two PINs however she has been absent from work for an extended period and those PINs have not been issued or addressed with her.
A number of breaches were prepared for Ord and due to the severity and the number of breaches Selfe considered disciplinary action should be taken against her. Selfe had no involvement in that disciplinary process.
Under cross-examination Selfe gave evidence that Rasmussen was no longer with SCHHS having left in mid-2013. She was unsure if she had remained in the area [Transcript p. 1-62]. Rasmussen had been the first person to raise with her the anomaly with the drug register. Although she could not recall the exact date it was likely to have been early June 2012 [Transcript p. 1-63]. Selfe had previously worked in the Emergency Department at Nambour and was aware of two drug registers in the main area and the observation ward [Transcript p. 1-64]. On commencing the audit she looked firstly at the drug register from the observation ward and checked with the other book when some of the content of the observation ward book "seemed a little unusual" acknowledging her audit was not a "complete audit" [Transcript p. 1‑64]. To have gone through the drug register in total and to have checked every entry would have been an "enormous thing to do" and it had taken a long time to do just the two pages [Transcript p. 1-65]. She confirmed only the pages either side of 2 May 2012 had been looked at by her [Transcript p. 1-65].
Selfe had not produced with her affidavit the documents perused by her nor had she seen a copy of the PRIME document or an ethical standards complaint relying upon the word of Rasmussen or someone else rather than having verified their existence [Transcript p. 1-66]. On her evidence of 10 ampules of Fentanyl having been missing from the Emergency Department's drug room, her evidence was "Approximately, yes. It is very difficult to - to be sure of any particular figure" [Transcript p. 1-66]. The difficulty in identifying the exact amount was due to the missing page of the book [Transcript p. 1-67]. Selfe was unable to remember how much Fentanyl was there or the day after 2 May 2012 [Transcript p. 1-67].
Her evidence regarding Reynolds was she appeared to be the person managing the inquiry which was the reason Selfe had taken her direction and was clear about the information she required [Transcript p. 1-68]. There was also an involvement in the process from Wilkinson through two face-to-face meetings and several phone conversations but she was unable to given specific details about their exchanges [Transcript p. 1-69]. Despite Reynolds indicating she wanted Selfe to look at more pages it was not reasonable in the circumstances as she was acting in McCarthy's role at the time. If Reynolds wanted more information she would have to do the investigating herself [Transcript p. 1-70].
The first page audited started on 9 April 2012 at 00.55 hours and finished on 2 May 2012 at 9.50 hours which showed the page coving a three week period [Transcript p. 1-71]. Selfe conceded there was confusion with regards to her auditing material annexed to her affidavit [Transcript p. 1-74]. In terms of attachment JS04 to her affidavit, it was her evidence that Reynolds prepared "the whole table" [Transcript p. 1-75]. All the headings on the document were prepared by Reynolds [Transcript p. 1-75. The audit process included:
· looking at patient charts;
· looking at the drug register; and
· cross referencing of rosters [Transcript p. 1-78]
Selfe was of the view regarding Ord's signature not being on the drug register that she should have been given the opportunity to have signed on [Transcript p. 1-80]. It was conceded that on her review of the drug register pages it was very difficult to work out some of the signatures [Transcript p. 1-80]. The findings regarding no Fentanyl orders being recorded in the patient's chart but the patient having been recorded on the drug register related only to the "two day period" [Transcript p. 1‑82].
Within two weeks of completing the audit she prepared a document [attachment JS07] in the form of PINs having some discussion along the way with Wilkinson [Transcript p. 1-84]. The notices were not physically handed to nurses by Selfe although her signature appears following a discussion on 13 August 2012. The period between the completion of the investigation and issuing of the PINs took some time due to logistical reasons [Transcript p. 1-86].
The PIN notices for Ord had been prepared by her relying upon document JS04 as the source material, however they were signed off by McCarthy. The decision to give them to McCarthy involved Reynolds and/or Wilkinson [Transcript p. 1-87]. Ord at no time was spoken to about any of the irregularities that had been found and continued to be rostered for work in the Emergency Department. Selfe at the time challenged both Reynolds and Wilkinson regarding not raising the matter with Ord but was told they would manage it from there [Transcript p. 1-88]. It did not make sense to her that Ord was allowed to work for months without at least a warning [Transcript p. 1-88].
In dealing with the other nurses issued with PINs, she pointed out to them what had occurred and where they had not followed the process. They were required to go over policies and make sure they were aware of the medication management handling administration [Transcript p. 1-89].
In re-examination Selfe was asked about the parts of the drug register she had examined giving evidence of having not seen the drug register since 2012.
Davey
A Security Operation Support Officer, Davey had been employed by SCHHS for around nine years. His evidence related to security swipe cards which are issued to all employees including casuals. The level of access depends upon the employee's position and in the case of Registered and Enrolled Nurses they are able to access all clinical areas including all drug rooms at the Nambour Hospital. The time between an application for a swipe care and a card being activated was usually a couple of days with each card having a unique number which easily identifies the person to whom it had been issued.
If a card was lost the employee is required to immediately notify security with the card marked as lost and should anyone seek to use the card security is alerted. A condition of issue is that the person agrees not to hand the card to any other person.
On having been advised by solicitors acting for SCHHS that Ord had claimed at 30 June 2012 a Registered Nurse named Jacinta (no surname provided) did not have a swipe card for that shift as temporary swipe cards were not issued, he acknowledged the assertion that temporary cards were not issued however nurses in the casual pool were issued with a swipe card.
On advice from SCHHS solicitors that in June and July 2012 there were three nurses with the christian name "Jacinta" working in the Emergency Department, he caused searches of the security management system to be undertaken which identified the date the swipe cards were first programmed for the following nurses:
· Jacinta McFarlane - 28 July 2010;
· Jacinta Taylor - 5 June 2012; and
· Jacinta Smalley - 27 September 2011.
The security system allows for a report to be retrieved which shows which card accessed particular doors at what time. He provided attachments to his affidavit of evidence that detailed the date and time the four doors in the Emergency Department drug stores were entered and who owned the card for which access was granted and the door accessed.
Further attachments to the affidavit [SD04, SD05 and SD06] identified entries concerning Ord between:
· 21.00 on 9 May 2012 and 02.00 on 10 May 2012;
· 15.00 on 30 June 2012 and 07.00 on 31 July 2012; and
· 21.00 on 31 July 2012 and 07.00 on 1 August 2012.
Davey, in concluding his evidence-in-chief (at paragraph 19) stated:
"However the swipe card records cannot tell you definitively if a person was in a room at a certain time or not, as it is quite common to allow other staff to follow them through the door."
Under cross-examination Davey was questioned regarding attachment SD05 in regards to a printout and what appeared to be an irregularity to which he said the dates could have fallen into an offline history as the system only holds history up to a certain date and it then does a backup [Transcript p. 1-93]. He was unable to explain the workings of the system in relation to SD04, SD05 and SD06 [Transcript p. 1-94]. What could be gleaned from these records was that Ord went either to the observations ward or the acute drug ward store at various times [Transcript p. 1-95]. In terms of CCTV surveillance the drug rooms were not covered and if someone swiped on or off with someone else's card that was unable to be scrutinised [Transcript p. 1-96]. The same applied if two people entered the room at the same time [Transcript p. 1-96]. In terms of any person with the name of "Jacinta", the check undertaken only went to those doors in question [Transcript p. 1-97].
Gamino
Gamino is the Acting Senior Advisor, People and Culture at SCHHS and her role included responsibility for:
· disciplinary matters;
· policy interpretation; and
· providing generalist human resource advice to managers.
She became aware of allegations against Ord in respect of irregularities with the drug register through discussions with Reynolds who had involvement in the initial investigations including liaison with the QPS. At that time Ord was not known to her but her level of involvement increased when Reynolds handed over the matter to the Employment Relations team for the commencement of the disciplinary process.
It was decided on 14 August 2012 that disciplinary action was not to be commenced until all investigations had been completed however there was a requirement to find suitable alternate duties for Ord in an area with strict no medication privileges and under supervision of an experienced nurse. On 19 August 2012 Ord was charged by the QPS and it was decided to place her in a no direct clinical patient contact position with no access to the hospital.
Ord was offered the opportunity to respond to SCHHS with regards to the general allegations although this was not seen to be part of the formal disciplinary process. In October 2012 Gamino supervised Ord as she reviewed patient records relating to the allegations against her and met with her on other occasions to discuss her leave balances after she had been suspended without pay.
AHPRA on 11 October 2012 imposed a number of conditions on Ord's nurses registration which included that Ord:
· be prohibited from any roles requiring direct or indirect clinical patient contact;
· prohibited from working in a sole charge or in a supervisory capacity; and
· only practise in a supervised position.
Following consultation with Workplace Services, a decision was made to commence a show cause in relation to the conditions imposed on her registration as well as suspending her from duty. On advice from Ord's legal representatives that the AHPRA decision would be appealed and the length of time such an appeal could take, it was decided to pause that disciplinary action.
In March 2013 Reynolds advised that Ord had been found not guilty of all charges brought against her however as the court proceedings were separate from the disciplinary processes, Ord's suspension with pay remained.
A further show cause letter was drafted by Gamino following clinical advice from McCarthy with the first show cause letter sent to Ord on 21 March 2013. Ord had been suspended on full pay for some months and due to budget considerations she was required to respond why her suspension should continue with pay. The response failed to provide any compelling reason why Ord should continue to be paid and advice was given on 16 April 2013 the suspension was now without pay. Ord then accessed long service leave and annual leave which she had accrued.
The show cause letter was responded to by Ord on 12 April 2013 and after consideration of the response Gamino prepared a number of recommendations which were then forwarded to Margetts the decision maker for his agreement or otherwise.
Gamino's affidavit went specifically to her considerations and the reasoning for her findings regarding the substantiating of some allegations and the non-substantiating of others. For the matters substantiated, she had decided on the balance of probabilities there was sufficient evidence to recommend those allegations to the decision maker as substantiated.
The decision maker had agreed with her recommendations which led to Ord being given the opportunity to show cause why her employment should not be terminated.
Prior to determining the issue of penalty Gamino undertook further investigations in respect of information provided by Ord in her show cause response. The further information did not warrant changes to her findings.
In consideration of whether dismissal was appropriate, Gamino met with Wilkinson and McCarthy to discuss whether they believed Ord could return to the Emergency Department, transfer to another area or be re-trained. They both felt strongly that Ord had broken the necessary trust that was necessary for a Registered Nurse and they did not trust if she came back she would comply with the correct procedures.
Gamino at the conclusion of her consideration believed Ord's employment should be terminated because:
· "there were too many substantiated allegations for it to be considered a minor administrative lapse;
· I was concerned with her lack of insight and general dismissal of these errors with no regard to the potentially serious implications that these errors may have had on patient safety as demonstrated in her responses to the allegations;
· I considered that she had not taken ownership of any of her lapses - it was always someone else's fault or because it was busy;
· I thought that if I was a patient, I would want my medications noted correctly in my chart; and
· I agreed with Mr Wilkinson and Mr McCarthy that Ms Ord had broken the trust that the SCHHS requires of its employees."
Under cross-examination Gamino confirmed her role in Employee Relations which required her to advise senior managers on employment relations matters such as awards, policies, people and culture matters [Transcript p. 2-13]. Her involvement in the disciplinary process with Ord came about as a result of Reynolds contacting her supervisor and she was given an oral direction to undertake the task [Transcript p. 2-15]. The policy documents she relied upon included:
· Queensland Health Disciplinary Policy;
· Public Service Act 2008; and
· Queensland Health Human Resource Policies [Transcript p. 2-16].
Gamino consulted at times with persons from the corporate office in Brisbane and when requiring clinical guidance she would speak to McCarthy and Wilkinson. A brief overview of how to read a patient chart was given by Reynolds [Transcript p. 2‑18]. In the course of the process there were no statements or evidence obtained from any person but she did sit in a room with Ord when she looked through patient records [Transcript p. 2-19]. On the occasions she spoke to McCarthy and Wilkinson she would accept whatever they said on clinical matters [Transcript p. 2-20] as they were heavily involved in the disciplinary process [Transcript p. 2-24].
In questioning around the process, Gamino was taken to the issue of PINs and correspondence by her that indicated Ord had received eight PINs, acknowledging now that Ord had not received the PINs [Transcript p. 2-26]. Gamino conceded she had portrayed an inaccuracy to Annabelle Kirwan (Kirwan) in the correspondence [Transcript p. 2-27]. Gamino sought to withdraw a number of matters from her statement on the basis of propositions put to her around material considered by her in the disciplinary process [Transcript p. 2-31].
On receiving advice about the AHPRA restrictions she had sought discussions with McCarthy and Wilkinson about where Ord might be placed in the hospital [Transcript p. 2-34]. It was determined on advice from McCarthy and Wilkinson that alternate duties could not be accommodated [Transcript p. 2-39]. Gamino, as the disciplinary process proceeded, did not correct any inaccuracies in material she provided to her superiors nor did she correct the fact that Ord had never been issued with the PINs as relayed to Kirwan [Transcript p. 2-41].
Gamino gave evidence of giving serious consideration to the show cause response provided by Ord and had discovered that in a number of the allegations McCarthy had got it wrong [Transcript p. 2-42]. Following consideration of the material it was forwarded to Margetts, in the form of a recommendation, and he had sought some further documentation [Transcript p. 2-43]. On issues relating to claims by Ord that certain signatures were not hers, Gamino did not seek to involve a handwriting expert or check with the other nurse who had been present stating "No, just on the balance of probabilities, I determined that the - the signatures appeared to be similar." [Transcript p. 2-45]. Gamino conceded there were opportunities to call for other documents but had not done so.
Some of the allegations were substantiated solely on information from McCarthy and not from her own independent view [Transcript p. 2-47]. She could not recall sending McCarthy the show cause response document submitted by Ord but had spoken to him about the response in telephone calls. Gamino accepted the information given to McCarthy was a summary of what Ord had relied upon and not precisely the response [Transcript p. 2-48].
In respect of the criminal proceedings involving Ord it was conceded by Gamino she was aware of an Enrolled Nurse relevant to the criminal proceedings who had admitted writing part of the document in question and despite the finding of not guilty against Ord the decision of Gamino was that Ord was guilty of having written in the book [Transcript p. 2-49].
Gamino denied that a decision to terminate Ord had been made prior to the receipt of her response regarding the proposed penalty yet when her response was received by Gamino at 2.46 pm on 7 June 2013 less than 20 minutes later she informed Wilkinson she would "work on the termination letter" [Transcript p. 2-53]. The instruction to terminate had come from Lois Craig (Craig) in the 20 minutes after receiving the response. Gamino shortly thereafter accepted that she had made the decision to terminate Ord which was signed off by others [Transcript p. 2-57].
Gamino was questioned regarding documents relating to disciplinary guidelines prepared by the Public Service Commission which in evidence given earlier by her were said to have been unfamiliar to her however her evidence altered to reflect she was aware of them but had not referred to them [Transcript p. 2-62].
On the issue of natural justice and the rule against bias it was put to Gamino that as she had relied upon McCarthy to provide opinions on matters and Ord had been in his "direct section" did she consider he may have been biased to which she replied "No" [Transcript p. 2-63]. In discussions with McCarthy and Wilkinson about possible placement of Ord early in the peace the only issue discussed was to terminate [Transcript p. 2-65].
Wilkinson
Wilkinson, the current Executive Director of Nursing and Midwifery at SCHHS, gave evidence in the first instance around the regulated medication control regime for drugs such as Fentanyl providing relevant extracts from the Health (Drugs and Poisons) Regulation 1996 (Qld) relating to:
· authority of Enrolled and Registered Nurses to possess and administer controlled drugs;
· oral instructions to administer controlled drugs;
· record keeping obligations; and
· storage of controlled drugs.
There was evidence regarding the nature of nursing in an emergency department which identified aspects that included:
· adherence to systems, processes and discipline; and
· adherence to policy and procedures.
There were processes in place to ensure safety and to protect both patients and practitioners in a busy environment. The saving of time does not necessarily equate with saving lives and nurses had a professional responsibility to ensure all procedures relating to S8 drugs are complied with.
On the subject of Ord he had discussions about the investigation and then disciplinary process involving her with the persons including McCarthy, Reynolds, Craig and Gamino. He was involved in the decision to move Ord to temporary duties and had met with her on 23 August 2012 to advise her of the move. At the meeting he informed Ord of his obligation to report the issue to AHPRA and recommended to her that she self-report. He had continued to provide AHPRA with updates regarding the SCHHS and Ord.
He was kept informed of the progress of the disciplinary process involving Ord but had no direct involvement in most of that process. Once Ord had provided her response to the second show cause letter he was asked to provide input regarding his professional opinion regarding the possibility of terminating her employment.
Wilkinson gave evidence of discussions in August 2012 with Gamino and McCarthy about her being transferred to work in another area or being re-trained. From his discussions with Gamino and McCarthy he became aware of allegations that had been substantiated against Ord which related to numerous failures by Ord to comply with proper procedures relating to the administration and documentation of Fentanyl.
[100]The opinion he expressed to Gamino was the failures of Ord on numerous occasions had the effect of not meeting the expected standards of a Registered Nurse, were not in accordance with reasonable nursing practice and she had failed to discharge her duty of care towards her patients.
[101]Wilkinson remained strongly of the view that Ord had not demonstrated the professional qualities clearly articulated within the Nursing Code of Conduct which from his perspective demanded that professionals be competent, caring and trustworthy. The level of trust had been broken and she could not return to work at the SCHHS.
[102]Under cross-examination Wilkinson confirmed details of his employment including 15 years in his current role at two different hospitals. He gave evidence around nursing practices in a number of hospital areas not all of which required the nurse to administer drugs [Transcript p. 2-70].
[103]He first became involved in the process in respect of Ord in March 2012 when he was informed by McCarthy there were issues with the dangerous drug book in the Emergency Department. It was not "unfortunately" uncommon for there to be reported issues with drugs or the drug count and they went into their normal routine of doing an immediate check [Transcript p. 2-71]. His role was to oversee the policies and procedures regarding medications but he had no direct involvement in the audit of the drug book [Transcript p. 2-72].
[104]Reports came to him of a missing page from the drug book and issues regarding signatures following an audit by Selfe [Transcript p. 2-72]. Whilst he received details of the audit he had not been given a document prepared by Selfe [Transcript p. 2-73]. There was an interaction with Reynolds who had acted as a conduit for Ethical Standards and with People and Culture. Ord had for two months following the identification of issues continued to work in the Emergency Department [Transcript p. 2-75]. There were meetings involving himself, Craig and Kirwan and at times discussions with Gamino [Transcript p. 2-77].
[105]Wilkinson was aware of the PINs issued to Nurses arising from Selfe's audit however she had been directed not to speak to Ord as the matter was serious and had been referred to the Ethical Standards Unit. Despite being one step removed from the investigation he was aware from the initial investigation there seemed to be a common association with Ord and numerous errors and question marks [Transcript p. 2-79]. There was advice from Reynolds that "we" had to be a step removed from the processes and not interfere [Transcript p. 2-80].
[106]Wilkinson was aware Ord had been found not guilty of charges relating to the drug book register and alleged signatures with the QPS ordered to pay her legal costs [Transcript p. 2-80]. On the matter of the disputed signatures he had given no opinion [Transcript p. 2-81].
[107]In his dealings with AHPRA he had informed them Ord had been charged with a criminal offence and later of her being acquitted. He was aware the AHPRA restrictions had been set aside by QCAT and this had occurred after the SCHHS had dismissed Ord [Transcript p. 2-83].
[108]Wilkinson had no input into the documents forwarded to Ord by Gamino except in an advisory sense regarding normal processes, procedures and expectations of a Registered Nurse but had not viewed any of the documents relied upon, accepting on face value what Gamino told him [Transcript p. 2-85]. In terms of Procedures 000603 and 000604 of which Wilkinson was familiar, he was aware many of the allegations were not substantiated and there was a change to the policy resulting from Ord's response [Transcript p. 2-86]. Wilkinson accepted that at the Nambour General Hospital day in day out there were many issues where policies and procedures were not followed, stating "Unfortunately that may be the case. That is not, certainly, the expectation" [Transcript p. 2-87].
[109]A question was put to Wilkinson regarding the death of a child at the Nambour Hospital in August 2012 where the system had failed over a letter said to have been given by a doctor to the parents but no doctor had a copy of that letter. Wilkinson evidenced that "Our system fails at times…Tragically at times" [Transcript p. 2-88].
[110]The opinion expressed in his affidavit of evidence about Ord had been based upon what had been told to him by Gamino, McCarthy and Craig with his evidence being "From the information that was provided to me, I drew that conclusion" [Transcript p. 2-89].
[111]Wilkinson's cross-examination concluded with the requirements relating to an oral order by a doctor to administer medication to a patient and the responsibility of the doctor to fill out the sheet [Transcript p. 2-95].
Hegarty
[112]Hegarty, the Health Service Chief Executive at SCHHS at the time of Ord's termination, held the delegation to make decisions regarding the imposition of disciplinary action excluding termination. At the time of the disciplinary action his responsibility was to make a recommendation to the decision maker. His general practice was to review the documents provided giving consideration to the impact it would have on the individual employee.
[113]On 13 August 2013 he received a briefing note from Gamino requesting he approve a recommendation that Ord's employment be terminated. Prior to the receipt of the briefing note he had a high level understanding that Ord was the subject of an investigation regarding a large number of discrepancies identified in respect of her entries in the drug book. He was also aware of conditions imposed on her registration by AHPRA. The source of his information was Craig and on his part there had been no direct involvement in the disciplinary process leading up to his decision to recommend her termination.
[114]On reviewing the material that was provided by Gamino he noted responses and explanations provided by Ord that led Margetts to either accept her explanation or discontinue pursuit of particular allegations. The actions of Gamino in preparing the correspondence and of Margetts was in his view balanced.
[115]He agreed with the decision of Margetts that certain of the allegations against Ord had been substantiated and he also took into account two further responses from Ord in relation to Allegations 30 and 31.
[116]Consideration was given to the quantum of the allegations where Ord had contended her signature had been forged with Hegarty indicating whilst he may have accepted her explanation for a single case of forgery or mistaken identity but as the claim went to multiple occasions and there was evidence for some of those instances that supported a conclusion on the balance of probabilities it was her signature and therefore he was not prepared to accept Ord's contentions. Margetts had reviewed the entries finding them to be similar including signatures that were made either side of the one in question.
[117]Hegarty had taken into account other matters that included Ord's evidence of the workload pressures in the Emergency Department which led to her having the responsibility for a large number of patients during a shift in question.
[118]Hegarty gave evidence of the stringent practices and recording processes in respect of the storage and use of controlled drugs within the SCHHS which were reflective of the legal obligations and potential risks associated with storage and use. For those practices to be effective there needs to be reliance on all staff with those responsibilities for implementing them to carry out their responsibilities and SCHHS must have confidence in those staff.
[119]The ultimate decision that termination was the appropriate disciplinary penalty was based on the balance of probabilities taking into account all the evidence before him which included:
· "Ms Ord had not conducted herself in a safe and competent manner by not practicing in accordance with professional nursing standards;
· her behaviour did not represent that which was appropriate for a Registered Nurse who is required to practice without supervision and act in the best interest of patients;
· the specifics of some of the allegations involving situations where entries had been made in the drug book but not the patient chart caused me concern, and this is the reality of the environment in which nurses have to practice and should not be used as a reason for why due process was not followed on more than one occasion;
· she had demonstrated this pattern of behaviour over the large number of breaches identified and for this reason, had lost the trust of the organisation to do work as a nurse; and
· the fact that there was no demonstration of any contrition or remorse for any of her actions, even those she admitted to."
[120]Hegarty had formed the view patient safety was better assured with Ord no longer being part of SCHHS as he had lost confidence in her to meet the organisation's high standards. Corporate Office had requested further information prior to approving the termination which led to the matters contained in Ord's second response being considered with Hegarty being later informed that Rowland had approved the termination.
[121]On reinstatement or re-employment to another area, it was the evidence of Wilkinson that the required trust between employee and employer no longer exists and such that outcome would not be appropriate.
[122]Under cross-examination Hegarty was initially required to respond to questions around the investigation and of the various participants in the process [Transcript p. 3-4]. Advice was provided to Hegarty in the context of the appropriate policies and guidelines and he had a clear expectation they had been followed in the course of the investigation [Transcript p. 3-5]. Hegarty did not accept the proposition that Gamino was taking advice from nursing staff and making findings based on that advice as against making her own decision or recommendations [Transcript p. 3-6]. With regards to the allegations that were discontinued because staff were not familiar with correct policy, he acknowledged there were some errors in the education process [Transcript p. 3-7]. On the same topic the following exchange occurred:
"Boyce:Absolutely. And if that's being ‑ if these allegations, 18 of them, are being given to Gamino, or confirmed by Gamino by nursing staff, such as McCarthy and Wilkinson, and not knowing that that's the policy, and sending her off in error, that makes it look far worse, having 18 of those allegations that were just unfounded because of the system that was being used in the hospital?
Hegarty:That error, yes.
Boyce:That's a huge embarrassment, isn't it?
Hegarty:Yes.
Boyce:And it shouldn't happen?
Hegarty:No.
Boyce:Right. So then - so that's 18 of them gone, because they made the mistake, not my client. So it surely would call into question your level of confidence about their ability to get it right?
Hegarty:Yes, there was ‑ there's an accepted understood known practice that was not reflected in that policy, so people were going by what was the known standard, rather than how that known standard was - - -
Boyce:What they were taught, on the job?
Hegarty:Obviously. That error flowed on.
Boyce:And if that came from staff, McCarthy and Wilkinson, those allegations being confirmed by them, you'd be very unhappy that they were made allegations, wouldn't you?
Hegarty:I was not happy, for the points you made." [Transcript p. 3-8]
[123]In making his decision to recommend the termination of Ord, Hegarty accepted he did so in the absence of any source material giving evidence that "I relied on the assessments that had been made by others" [Transcript p. 3-12]. Hegarty gave evidence of not being aware of the detail contained in Selfe's audit of the drug book nor was he briefed on the page missing from the book [Transcript p. 3-13]. Nor was he informed Selfe had prepared the PINs for Ord but was told not to action them [Transcript p. 3-14]. Hegarty accepted the interpretation offered on behalf of Ord that if a coversheet contained false information it should not have been given to him [Transcript p. 3-19].
[124]Other matters subject of the cross-examination included:
· Ord being charged with a criminal offence and there being no conviction [Transcript p. 3-23];
· involvement of AHPRA and the conditions put on Ord [Transcript p. 3‑36];
· being consulted regarding Ord's suspension with pay [Transcript p. 3-26];
· no recollection of being informed of QCAT's decision to overturn the AHPRA decision [Transcript p. 3-27];
· on his knowledge of Gamino in 2012 his evidence was he "didn't deal directly with her" with briefings coming through her line management" [Transcript p. 3-29]; and
· relied upon Margetts testament regarding the handwriting issues [Transcript p. 3-29].
Auger
[125]Auger, an Enrolled Nurse in the SCHHS Emergency Department, gave evidence of providing a statement to the QPS on 9 November 2012 in relation to an incident involving Ord. She confirmed the content of the statement which was attached to her affidavit of evidence which touched on matters including:
· being rostered on at Emergency Department from 9.00 pm on 31 July 2012 until 7.30 am on 1 August 2012;
· understood the process for signing out drugs against patients;
· confirmed her signature against certain entries in relation to drug orders; and
· disputed her signature against two other orders suggesting the signature looked like hers but she did not believe it was her who signed the book.
[126]Solicitors acting for Queensland Health had informed her of allegations made by Ord against her in relation to a shift that commenced on the evening of 31 July 2012 and ended on 1 August 2012. She understood the allegation to be that she was "on many occasions during that evening, when Schedule 8 drugs were required from the drug cupboard…found to be in possession of the key".
[127]Auger strenuously denied that she ever had possession of the keys to the drug cabinet and as an Enrolled Nurse that was outside her scope of practice.
[128]Under cross-examination she indicated that when she had worked with Ord she found her to be a person who would take care of her work [Transcript p. 3-35]. Auger was taken to drug records for the shift commencing 31 July 2012 where she acknowledged some of the handwriting was hers and some entries had not been written by her [Transcript p. 3-36]. Auger was taken to entries on 1 August 2012 where she again acknowledged some handwriting was hers and some of the signatures were not her signatures [Transcript p. 3-37].
[129]On being taken to notes of a conversation between Reynolds and herself, she could not recall having made some of the recorded comments [Transcript p. 3-38]. Auger's evidence was that up to a dozen nurses could be working in the Emergency Department at any one time and accepted that there were many reasons for accessing the drug room other than for Schedule 8 and other drugs [Transcript p. 3-39]. She accepted at times persons entered the drug room whilst other people were entering and exiting therefore not using their swipe card [Transcript p. 3-40].
Margetts
[130]Margetts, the Chief Finance Officer of SCHHS, also has a role as Acting Director of People and Culture for which he holds a delegation to issue second show cause letters and act as decision maker in deciding whether allegations have been substantiated and what disciplinary action should be proposed. In making disciplinary decisions his general practice was to carefully consider all material provided by People and Culture advisors placing reliance upon those persons to have conducted all necessary investigations and considered all relevant material.
[131]In relation to the allegations against Ord, recommendations were made by Gamino and after reading the material he agreed with the proposed findings recommended by Gamino which were justified for the reasons relied upon in her draft letter. He further agreed with the recommendation that the termination of Ord's employment was the appropriate disciplinary outcome and sent the material on to Hegarty for his decision.
[132]Under cross-examination questions were raised about the level of delegation held by Margetts [Transcript p. 3-45]. Margetts confirmed in considering the material relating to the investigation of Ord he had not specifically referred to the following documents to make sure he was "on track":
· Disciplinary Guidelines;
· Commission Chief Executive Guideline 01/13: Discipline; and
· Discipline - Human Resources Policy [Transcript p. 3-46].
[133]In his role he engaged with Craig but had not engaged with Kirwan around disciplinary processes [Transcript p. 3-46]. Margetts was unable to recall expressly whether he had seen documentation that included:
· emails or correspondence passing between Wilkinson, Craig, Gamino and Kirwan;
· documentation from McCarthy;
· document coversheet (CG03); and
· AHPRA - changes to Ord's imposed conditions [Transcript p. 3-48].
[134]Margetts recalled meetings with Gamino about the allegations against Ord but could not recall "exactly which allegations I may have discussed with her, no" [Transcript p. 3-49]. He became aware of the issues in relation to Procedure 000604 of incorrect information provided to staff [Transcript p. 3-50] through the show cause letter of Ord.
[135]Margetts accepted the determination of Gamino without making any further inquiry and did not question why there were 18 allegations not proceeded with stating that:
"It actually indicated to me that they had done due process in terms of making sure that the allegations that we were following through with were - they would be substantiated." [Transcript p. 3-50].
[136]Margetts had some difficulty in his recall of what pages of the drug register he had sighted however he did remember he was shown copies and not the originals [Transcript p. 3-50]. He had read the document provided by Gamino in its entirety, looking at every single allegation but acknowledged he was not provided with patient charts which were relevant to the allegations [Transcript p. 3-57]. It was not practical to go through every single piece of documentation or evidence himself, so he relied on advice and the process undertaken by the advisers, in this case Gamino [Transcript p. 3-58].
[137]Margetts, in accepting the investigation outcomes of Gamino's investigation, was not aware of what other investigations had previously been done by her [Transcript p. 3‑62]. Margetts's evidence demonstrated a limited knowledge of the test to be applied to the balance of probabilities standard of proof [Transcript p. 3-63].
Dr Swierkowski
[138]Dr Swierkowski, the Executive Director Medical Service for SCHHS and a qualified medical practitioner, gave evidence around the drug Fentanyl which he described as 80 to 100 times more potent than Morphine, has a rapid onset of action and exhibits high potential for misuse. It is a drug that carries a high risk of dependence and has some adverse effects that include nausea, vomiting, constipation, drowsiness and hypotension.
[139]Fentanyl is a Schedule 8 controlled drug with possession and use of Fentanyl the subject of strict legislative controls, including appropriate recording of its usage.
[140]Under cross-examination Dr Swierkowski gave evidence of not having "hands-on" experience in the Nambour Hospital Emergency Department but had worked in other emergency departments and he continues to do limited clinical practice. His evidence went to Fentanyl usage in general terms and of the dosage levels [Transcript p. 3-69]. In comparison to a drug such as Morphine, there is a more euphoric effect from Fentanyl making it more likely to be abused and more likely to cause addiction [Transcript p. 3-70].
[141]Dr Swierkowski had no involvement in the drug audit process [Transcript p. 3-72].
[142]In re-examination he gave evidence about an incident where an entry relating to a dosage of Fentanyl described the situation as "unusual" but acknowledged in making the comment he know nothing of the particular situation [Transcript p. 3-72]. On dosages of Fentanyl in the range of 25 to 50 mgs a doctor would give the nursing staff the liberty of deciding the range to be given based on the amount of pain [Transcript p. 3-73]. Dr Swierkowski went on to state:
"I don't know anything about this case, to be honest. But the most likely scenario, taking everything that I've just said into consideration, is that the prescriber may have had the will to provide the nurses with an avenue to give that dose in two allocates. So to titrate the dose - to give the initial and see how the patient goes and maybe follow up straight away by a make-up dose up to that 50."
[143]On two dosages prescribed from 14.30 to 18.30 hours it was unusual because of a space between the second dosage of Fentanyl and Vitamin K and was not the usual way the medication charts appear.
McCarthy
[144]McCarthy, the Emergency and Renal Nursing Director for SCHHS since 2010, has the responsibility for emergency nursing in Nambour, Caloundra and Gympie with part of those responsibilities to ensure there are correct procedures and policies in place for staff to follow in respect of medication safety. He has the responsibility of seeing there are suitable audits and checks in place to ensure compliance in relation to medication and if any anomalies in drug documentation are found he is required to lead an investigation. If the investigation uncovers a loop hole that has been identified and exploited he is required to update procedures.
[145]Ord had been known to him professionally for some time and was a student of his in a teaching role he has at the Sunshine Coast University. He was aware of her unfair dismissal application and until the issue subject of these proceedings arose he considered her a well-respected, albeit junior member of the team.
[146]The Emergency Department can, at times, be busy with both doctors and nurses working together closely as a team. Many of the senior emergency nurses hold a higher scope of practice than most nurses which allows them to administer certain drugs however that does not include Fentanyl which may only be prescribed by medical practitioners.
[147]The Emergency Department is divided into separate sections with Ord working in the observation area during the shifts in question. This area contains seven observation and four acute cubicles with three nurses rostered on every shift. In the absence of a nurse for reasons such as a tea break, then the other nurses may seek the assistance of a Team Leader or a doctor for the administration of medication. In his experience it was quite common for nurses needing to administer Schedule 8 drugs to request the assistance of other nurses not necessarily from their area.
[148]McCarthy gave evidence around Fentanyl and attached to his affidavit material relating to procedures for dangerous drugs that included:
· Procedure ID000603 Medication Management: Administration of Medication (Procedure 603); and
· Procedure ID000604 Medication Management: Controlled Drug/Restricted Drugs of Dependency Record Keeping and Check in a Clinical Ward/Unit (Procedure 604).
[149]As a result of Ord's responses in relation to many of the allegations initially put to her, Procedure 604 had been amended to more clearly require countersigning of any discarded amounts and a requirement that a second person actually watches the person administer the drug to the patient.
[150]Access to drug rooms is facilitated by the use of swipe cards and it is common for someone to hold open the door to the drug room for a colleague who they know is authorised to access the room. In the case of the observation ward drug room there is one key for each drug cabinet which is held by the most senior Registered Nurse on shift and in accordance with the Procedure 603 such keys can only be held by a Registered Nurse or Doctor. It is outside the scope of practice of an Enrolled Nurse to hold drug cabinet keys.
[151]McCarthy described the process relied upon for the prescription of medication which included references to:
· doctor prescribes dosage range;
· recording on patient's medication chart;
· PRN orders;
· nurse to exercise professional judgement to determine amount appropriate (in range);
· patient's reaction to drug monitored; and
· variable orders procedures.
In each drug room there are a number of drug books where records are maintained for regulated drugs.
[152]Procedures 000603 and 000604 contain the requirements for the administration of Fentanyl which clearly identifies that two authorised people (most commonly nurses but also doctors) count and agree upon the number of ampoules in the drug cabinet, note how many ampoules are removed and how many ampoules are remaining. An Enrolled Nurse can act as a witness but cannot administer the drug. Other requirements include the "seven rights and three checks of medication administration" at s 13 of Procedure 000603. Procedures were also identified where a drug was not administered after it was removed from the drug cabinet.
[153]At the end of each shift the off-going and on-going nurses count and agree upon the number of ampoules of Fentanyl in the drug cabinet and record this in the appropriate area of the drug book. There is a requirement for regular drug book audits by a Registered Nurse with the audit to include a reconciliation of the amount of Fentanyl supplied from the pharmacy to the Emergency Department and a record of the entries in the drug book. The purpose of the audit is to identify errors such as:
· incorrect count;
· missing signature; and
· non-compliance with discard procedure.
[154]The weekly and monthly audits do not pick up a situation where a drug has been taken without a proper order or whether the administration of the drug was not recorded in the patient medication chart. To undertake an audit to identify those types of breaches would require cross-checking between drug books and individual patient medication charts and would generally require some suspicion of what you may be looking into.
[155]Where errors are found around issues such as a missing signature a PIN will be issued to the nurse responsible. The PIN is sent off to Wilkinson and if the issue was regarded as serious it would go to the Complaints Resolution Manager. An option is available to involve the QPS if, for example, 10 ampoules of Fentanyl was to go missing.
[156]The issues regarding Ord's entries in the drug book arose out of an in depth audit of the drug book after it was discovered a page was missing. His involvement in the disciplinary process commenced when he returned to his usual role having been acting up in another position for some 11 weeks. There had been an investigation which resulted in the QPS being notified by Reynolds of the missing page from the drug book. Prior to his return, eight PINs for Ord had been prepared but not delivered to her and with Ord having "lawyered up" there was no opportunity to meet her and put the allegations to her in person. An attachment (BM17) to his affidavit was correspondence from Ord's lawyers (dated 22 August 2012) which contained the following passage:
"We confirm that we have instructed our client not to speak to you [McCarthy] or to anyone about those charges or any circumstances relating to those offences."
[157]He met with Ord on 23 August 2012 at which time she was directed to work in a non‑clinical area of the hospital pending the investigation and he had no further direct contact with Ord regarding the disciplinary process. McCarthy was involved in the preparation of documentation regarding the disciplinary process and spent many hours going over the allegations and evidence with Gamino, Wilkinson and others.
[158]He provided Gamino with advice regarding procedural requirements, clinical practice, expectations and potential safety risks. Other advice given to Gamino included:
· requirements regarding:
·drug cabinet;
·drug cabinet key; and
·drug book advice;
· nurses responsibility to decide (if any) pain medication for a patient; and
· when it is not appropriate to administer a strong narcotic pain medication (Fentanyl) to a patient.
[159]Note: Prior to the admittance of McCarthy's affidavit [Exhibit 37] into evidence objection was taken on behalf of Ord with regards to his evidence around the responses of Ord to the particular allegations that had been levelled against her.
The issue in the main related to content in the affidavit where his responses were premised with the comment "I have been advised by solicitors for Queensland Health" which was said to have caused an "opinionated response".
There had been objections raised in terms of Selfe's affidavit of evidence with Counsel for SCHHS stating at the time:
"So all of what's objected to is simply Ms Selfe's explanation of the process she followed, in the context of that process, in conducting the audit of the drug register. And her evidence is relied upon to explain why it is that there was a disciplinary process commenced with the applicant. Insofar as it contains hearsay, it's relied on simply as what informed the process that Ms Selfe followed and in that sense it's, in my submission, admissible. And, to the extent it's necessary, of course the Commission is not bound by the rules of evidence. Ms Selfe has explained fully the basis upon which she says these various steps informed her process and since it is relied on only to that extent, in my submission, it ought be admitted on that basis." [Transcript p. 1-57]
The response of the Commission at that time was as follows:
"He sets out, I think, in reasonable detail as to what the Commission should consider, and I don't think that it's ambiguous at all that what's left for me to consider in relation to the particular clauses of Ms Selfe's statement, where you identify the references to Ms Reynolds, that all I can really deal with is what actually is the evidence of Ms Selfe in regard to her particular actions. And the fact that there may be some background in relation to Ms Reynolds, I disregard that, to be quite frank with you. I'm not going to delete it from the affidavit because I don't know necessarily that that's required for me to deal with the matter in a way which doesn't impact negatively upon your client and know, obviously, the reasons you raised the - - -". [Transcript p. 1-59]
[251]The present case with regards to the standard of proof is within the rare category described by Von Doussa in Sangwin v Imogen[12] in that a failure to properly document a transaction involving Fentanyl poses a real and genuine risk to patient safety. The test is therefore whether a belief was held on reasonable grounds that Ord could not be trusted to adhere to the requirement of documenting such transactions in the future. If that test is satisfied then there was sufficient evidence to establish the basis for dismissal.
[12] Sangwin v Imogen [1996] IRCA 100 (unreported)
[252]Further on the standard of proof, the following authorities were cited:
· Bringinshaw v Briginshaw[13];
[13] Briginshaw v Briginshaw (1938) 60 CLR 336
· Edwards v Justice Giudice[14];
[14] Edwards v Justice Giudice [1999] 94 FCR 561
· Roma Town Council v Latemore[15];
[15] Roma Town Council v Dale Latemore (2001) 167 QGIG 176
· Harris v Gold Coast City Council[16];
[16] Raymond Harris v Gold Coast City Council (D/2010/121) - Decision - < for Health v Drake-Brockman[17];
[17] Minister for Health v Drake-Brockman [2012] WAIRC 00150
· Byrne v Australian Airlines Ltd[18];
[18] Byrne v Australian Airlines Ltd (1995) 185 CLR 410
· Bibby Financial Services Australia Pty Ltd v Sharma[19];
[19] Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37
· Rejfek v McElroy[20];
[20] Rejfek v McElroy (1965) 112 CLR 517
· Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[21]; and
[21] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
· G v H[22].
[22] G v H (1994) 181 CLR 387
[253]There was disagreement with the Applicant's position on the decision makers at the highest level relying on the assistance by persons such as Gamino to collate relevant evidence and determine conclusions of fact drawn from that evidence.
[254]The concept relied upon by Margetts, Hegarty and Rowland was to consider the material provided with each then exercising their own discretion, not acting on the behest of anyone else.
[255]Authorities supporting their actions were:
· Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation[23]; and
[23] Asiamet (No 1) Resources Pty Ltd v Federal Commissioner of Taxation (2003) 126 FCR 304
· Minister for Local Government v Sydney City Council[24].
[24] Minister for Local Government v Sydney City Council (2002) 55 NSWLR 381
[256]Further criticisms levelled at Gamino by reason of the assistance Gamino received on clinical matters from McCarthy and Wilkinson was unjustified as it was clearly proper for a person involved in a decision making process to obtain expert assistance.
[257]The submission covered matters pertaining to the first and second show cause letters as well as the decision to suspend Ord without pay when it became clear the issues were unlikely to resolve in the near future.
[258]The evidence shows that new issues of fact raised by Ord in the second show cause letter were investigated and addressed even though there was strictly no obligation to do so as they went to the question of whether the allegations in the first show cause letter could be substantiated.
[259]Gamino had formed the opinion that Ord's employment should be terminated after discussions with Wilkinson and McCarthy on whether they believed she could be transferred to another area or be re-trained. Gamino agreed with the opinions expressed by them in a number of areas which included:
· there were too many substantiated allegations for it to be considered a minor administrative lapse;
· lack of regard by Ord of the potential serious implications the errors may have had on patient safety;
· failure of Ord to take ownership of any of the lapses; and
· broken trust between employee and employer.
[260]Hegarty's decision to recommend Ord's termination was taken on consideration of all the material before him in addition to a deliberate effort on his behalf to consider the impact of his decision on her. His decision equally gave balance to his responsibility to ensure a safe clinical environment where patients receive the care to which they are entitled.
[261]Rowland in her correspondence of 2 September 2013 set out the reasons relied upon to terminate Ord's employment and in evidence described the process of decisions regarding potential termination as well as demonstrating her regard to the seriousness of the matter in making her decision.
[262]The allegations were the subject of extensive submissions which canvassed the evidence before the proceedings from a number of the witnesses and in particular was critical of the explanations relied upon by Ord.
[263]The allegations particularly addressed were: 1, 2, 4, 6, 8(b), 14(b), 15, 22, 30, 31 and 32(b).
[264]The criticisms levelled against Reynolds, McCarthy and Wilkinson on behalf of the applicant that they had tailored their actions to fulfil the purpose "to get her" were described as a "rather extraordinary claim". The evidence does not support as claimed that McCarthy's advice to Gamino was driven by bad faith and in fact he was described as a witness of truth who in evidence had made concessions where appropriate and admitted when he was mistaken. Any advice given by McCarthy to Gamino should be considered to have been given conscientiously and in good faith.
[265]On the criticism regarding the failure to call "material" witnesses, there has been no adequate explanation on the contention of "material". None of the named witnesses were directly involved in the decision making process to effect the termination and in the case of other witnesses not called, they had peripheral roles at best. The argument on the principle in Jones v Dunkel[25] was misplaced reliance on that principle with the rule in this matter having no application.
[25] Jones v Dunkel [1959] 101 CLR 298
[266]The submission argued that reinstatement ought not be ordered as:
· the dismissal was not harsh, unjust or unreasonable; and
· reinstatement would be impracticable because the SCHHS holds a reasonable doubt that Ord could be relied upon in her dealings with controlled drugs and to follow procedures.
[267]Cited was the authority of Perkins v Grace Worldwide (Aust) Pty Ltd[26] with passages relating to trust and confidence drawn to the attention of the Commission.
[26] Steven Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15
[268]On the loss of pay if reinstatement was to be granted there had not been evidence provided around benefit or wages received in the period since her termination to allow the Commission to make such an order.
[269]The Commission has no jurisdiction to make an award for remuneration lost in the period from 7 November 2012 to 1 September 2013 as the period related to a time prior to Ord's termination.
[270]In terms of financial compensation, should the dismissal be found to be harsh, unjust or unreasonable, the maximum granted cannot be greater than six months wages.
[271]There is no basis for a costs order in these proceedings.
Applicant in Reply
[272]The submission in reply did not accept that Ord had made numerous mistakes as alleged nor did the evidence in the proceedings support such a position. It was noted that McCarthy and Wilkinson did not know the requirements being taught to the nurses in the Emergency Department.
[273]Ord accepted that four of the allegations (1, 2, 4 and 8(b)) were founded and she had made errors on those occasions. In making those concessions she was not flippant nor did she disregard the ramifications that her errors may have had on patients. In reality Ord was targeted by the investigation team from the time the SCHHS built its case with the ultimate review to terminate her employment.
[274]The submission went on to address the:
· applicable policy and guidelines;
· procedural failures;
· allegations as to signatures;
· 22 August 2012 document cover sheet;
· letter of 19 September 2012;
· relevant roles;
· decision makers and advisors;
· second show cause letter; and
· evidence of EEN Auger.
[275]On the matter of reinstatement, the assertion of the respondent of it being impracticable to reinstate Ord was rejected by Ord with serious consideration to be given by the Commission as to whether the lack of confidence expressed about Ord related to the entire Government Department. It would seem to be unreasonable to believe each and every member of SCHHS had lost trust and confidence in her ability to perform her role. The apparent loss of trust was said to be ill-conceived and without justification. If the Commission was mindful to reinstate Ord, it was confirmed she would not have any issue with being the reliable, diligent worker she was prior to her dismissal and she takes no issue with the SCHHS or any of the employees that had been part of the dismissal process.
[276]Once the initial audit had been completed, instead of providing Ord with the findings she was allowed to continue to work for months without being made aware of any errors.
[277]The only just and fair remedy was to reinstate Ord's employment.
Conclusion
[278]On 2 September 2013 Ord received correspondence from Queensland Health under the signature of Rowland, the Chief Human Resources Officer that in relation to the substantiated allegations against her Margetts had determined the following:
· "for allegations 1, 2, 4, 6, 8, 15, 22, 30 and 31 that, pursuant to section 187(1)(a) of the Public Service Act 2008 you had performed your duties carelessly, incompetently or inefficiently; and
· for allegation 32 that, pursuant to section 187(1)(f) of the Public Service Act 2008, you had contravened, without reasonable excuse a standard of conduct applying to you under the Code of Conduct for the Queensland Police Service".
[279]The Health Service Chief Executive (Hegarty) on consideration of responses from Ord on 6 June 2013 was not persuaded to interfere with Margetts' findings referring those findings to Rowland unaltered for her decision.
[280]Rowland informed Ord in terms of her decision making it had been based on "all of the material currently before me, including your responses, however all the information may not be specifically mentioned in my decision. My conclusions have been reached on the balance of probabilities, and having regard for the test in Briginshaw".
[281]In terms of the proposed penalty of termination, Rowland had considered the responses on Ord's behalf that included:
· "you have 'provided a reasonable explanation' for the substantiated allegations;
· the substantiated allegations do 'not warrant dismissal';
· you have 'been employed by Qld Health at Nambour Hospital since 2001 and has had no prior issues';
· 'our client is a highly qualified Registered Nurse who goes above and beyond what is required of her in her employment';
· 'there are a number of options available…other than terminating our client's employment. There is no reasonable justification for you to terminate her employment';
· you are 'willing to be supervised or undertake any further educational training required with respect to the protocols and procedures relating to the role of a Registered Nurse. She is also willing to be transferred to a different area of the Hospital if necessary'."
[282]Rowland decided that the appropriate disciplinary action to be imposed in the circumstances was the termination of Ord's employment with immediate effect.
[283]This matter prior to the issuing of the letter of termination on 2 September 2013 had what might be reasonably be termed a somewhat "convoluted" history.
[284]In May 2012 the SCHHS became aware that a page from an Emergency Department drug register at the Nambour Hospital had been removed which prompted a referral to the Ethical Standards Unit. The Complaints Resolution Manager (Reynolds) had undertaken steps to instigate an internal investigation as well as liaising with external bodies that included the QPS.
[285]The Acting Nursing Director - Emergency (Selfe) was instructed on 1 June 2012 by Reynolds to remove and secure the drug registers and over a two week period Selfe conducted an audit of the drug register in respect of the pages either side of the missing page. Selfe identified in the course of the audit that seven nurses including Ord had breached SCHHS policies in respect of the controlled drug register and it was determined the staff identified be issued with a PIN for breaches assessed as "sloppy nursing practices". In the case of Ord due to the severity and the number of breaches it was considered that disciplinary action should be taken against her.
[286]Despite the concerns regarding the conduct of Ord, the SCHHS at this time chose not to raise with Ord any of the concerns they may have had and she continued to work unabated.
Criminal Charges
[287]On 19 August 2012 officers of the QPS attended Ord's residence which resulted in charges being laid against her on the same day for two counts of stealing as a servant and two counts of falsifying records.
[288]Ord faced the Maroochydore Magistrates Court in response to the criminal charges on 4 February 2013 and 8 March 2013 which resulted in all charges being dismissed and the prosecution being ordered to pay Ord's costs in the amount of $8,036.05.
[289]In terms of the matters subject of this application, whilst it is argued that Allegations 30 and 31 levelled against Ord by her employer were the basis of the criminal charges, the outcome of the criminal proceedings in my view are of little consequence in relation to the application for reinstatement.
[290]There was no evidence before the proceedings that dealt with the reasoning relied upon by the Magistrate for firstly dismissing the charges and secondly the award of costs and on that basis to draw any conclusions from the criminal proceedings besides being speculative would be unhelpful in the scheme of things.
[291]There was a different standard of proof to be met in the criminal proceedings which is of a higher level that the standard upon which this application will be determined.
AHPRA
[292]On 31 August 2012 the SCHHS notified AHPRA of concerns in respect of Ord as a result of the allegations levelled against her prompting a response from AHPRA whereby the following conditions were imposed upon her pursuant to s 156 of the Health Practitioner Regulation National Law effective from 8 October 2012:
"NOTICE OF CONDITIONS
Ms Geraldine Ord
Registered Nurse (Divisions 1 and 2)
Registration number: NMW0001470022On [date] the Nursing and Midwifery Board of Australia (the Board) imposed the following conditions on the registration of Ms Geraldine Ord ('the practitioner'):
1. The practitioner is prohibited from undertaking any roles requiring direct or indirect clinical patient contact until approved to do so by the Board.
2. The practitioner is prohibited from working in a sole charge or in a supervisory capacity.
3. The practitioner must only practice the profession in a supervised position approved by the Board.
4. The supervisor must be nominated in writing by the practitioner within 7 (seven) working days and must:
a.be senior to the practitioner in years of experience or by position
b.agree to the nomination, an
c.be approved by the Board (or its delegate) in writing.
5. The practitioner's supervisor is to determine the level of supervision required and may be either direct or indirect.
6. The practitioner must provide three (3) monthly reports to the Board completed by her supervisor addressing the practitioner's fitness and competence to practise as measured against the Board's Registered Nurse Competency Standards, or at other times as negotiated with the practitioner's AHPRA monitoring case officer.
7. A representative of the Board and the practitioner's supervisor(s)/employer(s) are required to exchange information at such time or times as the Board shall determine for the purposes of monitoring compliance with the conditions.
8. The practitioner must provide any current employer with a copy of these conditions within seven (7) days of their imposition, and provide any future employer with a copy of these conditions prior to commencing any future employment.
9. The practitioner must further advise the Board within two (2) business days of any change to her place or nature of employment."
[293]Ord filed, on 7 November 2012, an application with QCAT for a review of the AHPRA decision.
[294]AHPRA on 1 July 2013 advised the SCHHS of an intention to remove the conditions imposed on Ord's registration and impose new conditions. On completion of their process AHPRA, in correspondence dated 3 September 2013, advised Ord of their decision:
"On 21 August 2013, the Board considered your submission and decided to take immediate action under section 156 of the Health Practitioner Regulation National Law (National Law).
Specifically, the Board has decided to impose the conditions set out in the enclosed schedule, replacing the previous conditions that were imposed on 8 October 2012.
The decision tales effect from 21 August 2013. Under section 159 of the National Law this decision will continue to have effect until the decision is set aside on appeal or the conditions are removed by the Board."
[295]In the Reasons for Decision by AHPRA at paragraph (h) it was stated:
"The new amended conditions will target the specific concerns of the allegations; that is the alleged mishandling of the Schedule 8 drug Fentanyl. Queensland Health has provided no indication that you are incompetent at your job as a nurse and therefore it would seem reasonable that you be allowed to continue to carry out all the functions of a nurse other than that which requires you to administer Schedule 8 drugs."
[296]In comparing the conditions imposed on 8 October 2012 and 3 September 2013 it reveals almost identical conditions each having the same effect on Ord's nursing registration.
[297]On 14 February 2014 QCAT, in a written decision from Judge Horneman-Wren SC made the following order:
"The decision of the Nursing and Midwifery Board of Australia of 21 August 2013 is set aside and the conditions imposed on the registration of Ms Ord by that decision are removed."
[298]The effect of the involvement of AHPRA upon Ord was that the restrictions imposed on her were the catalyst for the SCHHS to suspend Ord from work with pay on 2 November 2012 which had the effect of a detrimental impact on the level of remuneration she received in that period of her suspension. Further due to the AHPRA restrictions the SCHHS on 16 April 2013 altered the suspension of Ord to a suspension without pay which increased the level of financial impact upon Ord.
Allegations and Show Cause Process
[299]Thirteen days after criminal proceedings against Ord had been dismissed the SCHHS in correspondence under the hand of Kirwan advised that upon the finalisation of the matter involving the QPS and based upon additional information there were some 33 allegations relating to specific concerns about Ord's performance.
[300]Ord was provided with an opportunity to respond within fourteen calendar days to show cause as to why disciplinary action should not be taken against her in relation to the allegations. The response was to be forwarded to Gamino (Advisor - People and Culture).
[301]On 12 April 2013 responses to the allegations were received from Ord which included specific responses to each allegation in addition to the following response regarding education in the Emergency Department:
"During an education session on Medication Safety conducted by CN Jody Green in early May 2012, attended by 12 nursing staff of the Emergency Department, it was brought to our attention that when discarding Schedule 8 drugs eg: Fentanyl, Morphine etc, in accordance with the SCHSD Procedure ID 000604.02. The 2 x nursing staff responsible for checking, preparing and discarding the drug to be administered did NOT have to initial the 'comments column' after documenting the amount discarded unless the nurse who witnessed the discard was not one of the original nurses who signed the drug entry previously."
[302]Following consideration of Ord's response the SCHHS in correspondence under the signature of Margetts advised that as a consequence of Ord's submission in terms of an error in Procedure 000604 further investigations had:
"…identified an error in Procedure 000604 and incorrect information provided to staff to the discarding of the unused portion of drugs. Procedure 000604 is being updated and education sessions are being provided to all staff of the Department of Emergency Medicine to ensure correct procedures are being followed."
[303]This resulted in Allegations 4, 7, 8(a), 10, 12, 13, 14(c), 16, 17, 18, 19, 20, 23, 25, 27, 28, 29 and 33 effectively being withdrawn.
[304]In the course of the investigation by Gamino she acknowledged the receipt of clinical advice from McCarthy in preparing the show cause letter of 21 March 2013 and as the Emergency and Renal Nursing Director for SCHHS with responsibility for emergency nursing not only in Nambour but at Caloundra and Gympie as well, it is beyond reasonable comprehension he would have been unaware of the issues with Procedure 000604 pointed out by Ord who in evidence he described as a "junior member of the team". McCarthy pointed out that the Procedure had subsequently been amended as a result of Ord's responses.
[305]Margetts went on to inform Ord there were grounds to discipline her in respect of the remaining allegations (identified in the correspondence) and she was given seven days to respond to his considerations. Given the serious nature of the allegations the disciplinary action was to be the "termination of her employment".
[306]Following a response on behalf of Ord (dated 6 June 2013) forwarded to Gamino by email on 7 June 2013 at 2.46 pm Gamino some 20 minutes after receiving the response sent an email to Wilkinson and Craig at 3.06 pm which stated:
"Hi Graham,
Please find attached Ms Ord's response. I will work on the brief to the Chief Human Resources Officer for termination.
Regards,
Christina."
[307]Prior to the letter from Rowland on 2 September 2013 informing Ord of the decision to terminate, both Margetts and Hegarty had considered the recommendation of Gamino that had been arrived at following consultation with Wilkinson and McCarthy who had "both" felt strongly against her reinstatement or re-employment.
[308]Gamino in cross-examination stated it was Craig who had decided to terminate Ord in the 20 minute time period from Ord's response being received to the penalty and Gamino's email to Wilkinson and Craig being sent.
[309]The decision making process ended with Rowland, however prior to her consideration of the material which had been in essence prepared by Gamino it had passed through what might be described as a "filtering process" with Margetts and Hegarty endorsing the termination proposal along the way.
[310]It is not my intention therefore to be critical of Margetts, Hegarty or Rowland for limiting their considerations to the material provided by Gamino as such a practice would be well established in an organisation the size of Queensland Health. It would hardly be a reasonable expectation that each of the substantiated allegations be examined by any of the aforementioned three officers in "micro form".
[311]They would be entitled to have concluded that for example the matters as listed below would have been meticulously dealt with by Gamino in the investigation process and detailed in the material for their considerations:
· drug register entries checked comparatively against patient records; and
· issues of contention over the legitimacy of signatures would be subject to a professional level of scrutiny beyond simply that of Gamino.
[312]Hegarty gave evidence of Margetts having reviewed the signatures in contention. However it is more likely than not on the evidence before the proceedings that Margetts' level of expertise in regards to distinguishing between the contentious signatures was not at a level beyond that of Gamino.
[313]The test in this case regarding the harshness, unjustness or unreasonableness of the dismissal of Ord is not simply whether Rowland in ultimately deciding the appropriate penalty made the correct decision but whether the material provided to her was of a standard to justify in all circumstances Rowland's decision.
[314]The Commission was not afforded the opportunity to hear evidence from staff involved in the process at various times such as Reynolds, Kirwan and Craig for instance. This does not necessarily impact on the Commission findings in a negative way with the evidence available to the Commission being sufficient in nature to support such findings that may be made by the Commission.
[315]The key participant in the process overall was Gamino and it is "her" investigation in my view that experiences some difficulty once objectively scrutinised. Such difficulties emerged at the time of the drafting of the first show cause where she had relied upon clinical advice from McCarthy. Of the initial 33 allegations, 18 were either unsubstantiated or not proceeded with and some of the unsubstantiated allegations being as a result of Procedure 000604 issues which should have been identified by someone of McCarthy's standing at the outset.
[316]Gamino throughout the process continued to rely upon McCarthy and Wilkinson who in my view because of the positions they held in nursing and their knowledge of Ord would have not passed a "transparency" test regarding their objectivity. This was borne out in their evidence regarding the impracticability of Ord being re-employed or reinstated. I accept they may well have held genuine views from their perspective regarding trust and confidence in Ord however those views are likely to have been foremost in their minds as they worked with Gamino in the process leading up to the termination which had the potential of them whether consciously or unconsciously contributing to the outcome in a manner that was less than fair.
[317]Gamino's decision to, in effect, be the "judge and jury" in the issues relating to the contentions around the signatures (which were in my view a critical aspect of the allegations) and not to seek a more professional opinion, "coloured" to some extent her outcomes on this point.
[318]Whilst I acknowledge the procedures around the show cause process generally afforded Ord a proper opportunity to respond to the allegations, the "final hurdle" in the 20 minute time period consideration of Ord's detailed response to the proposed penalty of the termination of her employment was to me quite telling to the point the decision to terminate had well and truly been arrived at prior to the receipt of Ord's response which was a significant breakdown in the application of procedural fairness.
[319]The overall lack of Gamino's clinical expertise and reliance on McCarthy and Wilkinson to fill that gap, in an investigation process where the allegations were predominantly clinical in nature, casts in my mind "a shadow" over her recommendations, raising the question of whether it would be safe to have accepted such recommendations.
[320]Gamino did not present as a witness that convinced the Commission to accept the investigation process undertaken by her had met the standards required with regards to natural justice and procedural fairness.
[321]On the matter of the allegations levelled against her, Ord admitted that Allegations 1, 2, 3 and 8(b) were founded and she had made errors in the administration of Schedule 8 drugs as alleged.
Finding
[322]On consideration of the evidence, material and submissions before the proceeding, I find that the Applicant, based upon the requisite standard of proof, had established the material emanating from Gamino's investigation and the subsequent endorsement of that material by Margetts and Hegarty leading to the decision of Rowland to termination Ord's employment, was not of a standard to warrant the termination of employment.
[323]Further that in terms of Ord's capacity and performance the SCHHS had not availed themselves of the opportunity to warn her regarding her actions in administering controlled Schedule 8 drugs when the matter first came to their attention following Selfe's audit.
[324]The decision to terminate Ord's employment in my view was harsh, unjust and unreasonable in the circumstances with an appropriate penalty for her clinical failures to have been the issue of a PIN or PINs as occurred with the six other nurses identified in Selfe's audit process.
Remedy
Ord through her application had sought the primary remedy of reinstatement to her former position without prejudice to her former conditions of employment with the SCHHS to pay remuneration lost by Ord from the date of dismissal (2 September 2013) until the date of reinstatement.
[326]In submissions it was expressed that Ord would accept a placement into a nursing position away from the Nambour General Hospital, at another hospital in the SCHHS area of operation. Further that Ord in effect bore no malice towards any of the SCHHS staff involved in the disciplinary process.
[327]There was evidence in the proceedings from Gamino, Hegarty, Wilkinson and McCarthy that the SCHHS had lost trust and confidence in Ord and it was impracticable for her to be reinstated. Questions were also raised with regards to concerns for patient safety should Ord be reinstated or re-employed.
[328]On the capacity of Ord to be reinstated or re-employed, I note in the AHPRA correspondence (dated 3 September 2013) at paragraph (h) of their Reasons for Decision where it was stated:
"Queensland Health has provided no indication that you are incompetent at your job as a nurse and therefore it would seem reasonable that you be allowed to continue to carry out all the functions of a nurse other than that which requires you to administer Schedule 8 drugs."
[329]In the decision of QCAT to set aside the AHPRA decision Judge Horneman-Wren SC at paragraph 73 opined:
"Even if I were of the view, which I am not, that Ms Ord's record keeping was such as to give rise to a belief that she posed a risk to persons, I would not be of the belief that the conditions imposed were necessary for the protection of public health and safety. The conditions are, as the decision suggests, targeted towards a risk to public safety, posed by a person who has misappropriated Schedule 8 drugs and falsified records in that regard. This is not the risk presented by a person who has made errors in the reporting of the administration of drugs, but where those drugs are otherwise accounted for."
[330]In effect, the position of Queensland Health in September 2013 according to AHPRA was that Ord was not "incompetent at her job as a nurse" which would indicate to the Commission she could, if reinstated or re-employed, carry out the functions of a Registered Nurse. Accepting there may be concerns around the administration of Schedule 8 drugs it may be appropriate to require Ord to undergo further training in that respect before undertaking those tasks in the future.
[331]I concur with Judge Horneman-Wren SC that Ord does not, as a Registered Nurse, pose a risk to persons even though she may have made errors in the past in the reporting process involving the administration of drugs.
[332]Further Ord who commenced employment at the Nambour General Hospital as a Phlebotomist in 2001 and over the subsequent years became a Registered Nurse had no evidence raised about her in the proceedings regarding any previous disciplinary matters pertaining to her conduct, capacity or performance. Thus she presents as an employee with an unblemished record at the time the allegations were levelled against her.
[333]Therefore I order:
· Ord be reinstated to her former position as a Registered Nurse without prejudice to her former conditions of employment;
· Ord's continuity of employment is maintained;
· the SCHHS is to pay to Ord lost remuneration from the date of the dismissal until the date of reinstatement;
· Ord is to provide to the SCHHS all details of income and financial benefit earned or received by her from 2 September 2013 until the date of reinstatement. This detail must be provided within seven days following recommencement of employment; and
· reinstatement is to be effected within 21 days of the release of this decision.
[334]By way of implementation of the abovementioned orders, the choice of location and department to which Ord will be allocated upon reinstatement is at the discretion of the SCHHS.
[335]Should there be an issue regarding the quantum of lost remuneration, the parties are free to contact the Commission for a determination to be made if necessary.
On the matter of remuneration lost in the period 7 November 2012 and 1 September 2013, this is not a matter for this particular application.
[337]There is no order as to costs.
[338]I order accordingly.
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