One of the advantages of professional registration under the Health Practitioner National Law is that there will be an open and accountable process for determining complaints against registered paramedics. Even without registration complaints procedures exist, for example in New South Wales complaints about unregistered health practitioners can be made to the Health Care Complaints Commission.

In Queensland, there is a Health Ombudsman (Health Ombudsman Act 2013 (Qld)).  The Health Ombudsman can receive health service complaints including complaints about practitioners who are not subject to national registration. Where the Health Ombudsman thinks that the complaint reveals that ‘because of the practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons’ he or she may issue an interim prohibition order that imposes restrictions on the person’s practice or prohibits them from providing health services (ss 67 and 68). Where an order is made the person the subject of the order may apply to the Queensland Civil and Administrative Tribunal (QCAT) for a review of that decision (s 74).

Lapthorn v Office of the Health Ombudsman (No 2) [2017] QCAT 353 (13 October 2017) was an application for review of a decision by the Health Ombudsman to impose an interim prohibition order on Mr Lapthorn, a Queensland paramedic.

First, a very important point to note

The story that I am about to relate, at least at first instance, implies sexual impropriety. It should be stressed that although that was an initial concern it was not the allegation before QCAT and QCAT’s Acting Deputy President O’Callaghan said (at [80]; emphasis added) that he was ‘satisfied that there were no improper or indecent motives for Mr Lapthorn’s actions’.  It is important to bear that in mind when reading the following details.

What happened

In June 2016, Mr Lapthorn and his partner had responded to a call of a 7 month old baby girl ‘identified as vomiting blood and not alert’. Mr Lapthorn completed a detailed examination of the baby including asking the baby’s mother to remove the infant’s nappy and conducting an examination of the baby’s genital area. The baby was transported to hospital.

Mr Lapthorn’s partner thought that his conduct in examining the baby’s labia was inappropriate and she made a complaint to senior officers. As a result, Mr Lapthorn was suspended from duty and the matter referred to the Health Ombudsman. The Ombudsman determined that there may have been a breach of the criminal law and a breach of the National Code of Conduct for Health Care Workers in that Mr Lapthorn’s conduct may have been unethical, unsafe or sexual in nature. The Ombudsman issued an interim prohibition order directing that Mr Lapthorn not treat any person under the age of 18.

Mr Lapthorn sought a review from QCAT. It is the nature of these reviews that they are a ‘hearing de novo’ (ie a new hearing). The role of QCAT is not to review the original decision to see if there has been any error, rather QCAT is to sit as the decision maker and consider the matter afresh. To be fair to Mr Lapthorn it is important to set out the basis of the complaint as it was presented to QCAT. Acting Deputy President O’Callaghan said (at [26]-[27]; emphasis added):

However, at the time of the hearing, the risk of harm identified by the HO [Health Ombudsman] was expressed, not in terms of risk of unethical, potentially illegal, or unsafe conduct. The HO expressly stated that they were not attempting to make out a case of sexual gratification and no reference was made to potential breaches of specific codes of conduct. Rather, the risk was identified in much broader terms.

The HO submitted that the examination of the infant was done without any reasonable clinical justification. It submitted that, when considered together with the other conduct uncovered in the investigation, the Tribunal could be satisfied on reasonable grounds that there was a risk that Mr Lapthorn would further engage in some form of clinical conduct, which was without reasonable clinical justification and which was potentially harmful.

Again, to be clear, it was not an allegation of sexual impropriety, but an allegation that Mr Lapthorn performed a procedure ‘without reasonable clinical justification’.

Because a hearing before QCAT is a new hearing it is not limited to the issues that were first considered. During the investigation, the Health Ombudsman found other irregularities in Mr Lapthorn’s practice extending back over time. In particular, the Ombudsman alleged that Mr Lapthorn had performed a dangerous and unauthorised procedure known as carotid sinus massage, he had stocked his drug kit with five rather than two ampules of fentanyl as permitted, he had left his station to return home during some shifts contrary to QAS policy and he demonstrated non-compliance with various administrative directions.

Although the Health Ombudsman had only considered the issue of the examination of the child when making the decision to issue an interim prohibition order, before QCAT the Ombudsman relied on all the identified conduct and argued that ‘the collective conduct is what gives rise to the risk and which requires an IPO to protect the public’ ([17]).

What did the QCAT find?

Inspection of the girl’s genitals

An expert in paediatric emergency medicine called by the Ombudsman said that it was important to check whether a child who had been vomiting was well hydrated.  It was conceded that ‘that examination of the genital area would reflect a child’s hydration status’ but ‘if an inspection of the mouth had been done to assess hydration, a genital examination would provide no extra information’ ([41]). She was of the view that if the paramedics had already decided to transport the child there was no need to inspect the genitals but ‘if no decision had been made to transit, it may have been appropriate to do a visual inspection of the genitalia, but not to physically part the labia’ ([42]).

The QAS director of clinical quality and public safety gave evidence about the ambulance service clinical practice manual.  The manual recommended both the transport of all paediatric patients and said, ‘A detailed patient assessment is required on all paediatric patients irrespective of the nature of the case’ ([49]). His evidence was ‘It is not in accordance with QAS clinical practice to check the vagina for signs of dehydration’ and that ‘There are no circumstances where it would be acceptable or appropriate to touch and spread an infant’s labia’ ([50]).

Mr Lapthorn also relied on expert testimony. The paediatric emergency physician called in Mr Lapthorn’s case said (at [60]):

  • There are theoretically possible causes of fever in a young child which may only be revealed by an examination of their genitals – but that would be rare.
  • The membrane lining the area inside the vulvae and the vaginal canal could reflect a child’s hydration status.
  • Mark Lapthorn followed a sound clinical principle conducting the examination, that is seeking clinical information.
  • In hindsight, the examination was unnecessary and misguided but was not in itself harmful.

His other expert was an experienced paramedic and now a university lecturer in paramedicine.  She was of the view (see [66]) that:

  • The presentation of symptoms of the infant warranted a thorough examination, noting the paediatric assessment guidelines,[31] which provide that “a detailed patient assessment is required of all paediatric patients irrespective of the nature of the case”.
  • The examination was atypical but justification for variation of practice may include the paramedic’s belief that they are providing more optimal and tailored patient centric care.
  • If thrush, nappy rash, meningococcal rash or any other rash (or other hidden problem) were considered possibilities, the removal of the nappy and inspection of the genital region may be appropriate.
  • If the examination was for the purpose of identifying an infection then it may be justified.

She agreed ‘that if there had been an examination of the mucus membrane of the mouth then there was no need to examine the genitals for the purpose of assessing hydration’ ([67]).

Mr Lapthorn’s explanation ([71]) was that after examining the child he ‘applied genital pressure to the labia just to check in between the labia for rashes, infections and discharges, foreign bodies such as ticks or anything along that line’.

When asked whether he thought that was the correct treatment he said “[t]here was probably a bit of paternity in it in the fact that I was, with three girls you do check for things like chlamydia, candida infections, discharges, dehydration.  But I was just doing a full assessment or at least I believe that’s what the scope of the thing is.  Like it says do full head to toe surveys…if I was doing a stubbed toe I would not do a 12 lead ECG but given this was a gastrointestinal and possibly a genital urea issue, I felt it was appropriate at that stage.”

Later he said (at [78]):

“I feel I’ve got the experience there with three daughters.  Like I knew what I was looking for from a daughter point of view.  As a paramedic, probably not, all paramedics are going to do like, a lot of paramedics would never consider taking off nappies or perhaps to assess genitalia.  I would probably feel a bit remiss if I didn’t try and get all of the information for the receiving facility, I know, particularly with, and I’m using meningococcal again, as an example, but if you’ve got a rash underneath the nappy there could be meningococcal  and you’ve missed it….”

What, no doubt, counted very much in Lapthorn’s favour was his attitude to the process and the Tribunal.  The Acting Deputy President said (at [69]):

In giving his oral evidence and under cross-examination, Mr Lapthorn presented as honest and non-confrontational.  He accepted reasonable propositions put to him and made concessions even when, apparently, not in his interest.

I shall return to that in the final discussion below.

Ultimately the Tribunal found (at [80]-[83]):

… there were no improper or indecent motives for Mr Lapthorn’s actions for conducting the examination.

Mr Lapthorn’s conduct was motivated by a desire to ensure that he conducted a thorough examination of the infant prior to a determination being made to transport her to hospital and if taken to hospital, to provide as much information as he could to the treating doctors.

It was more likely than not that the infant would have been taken to hospital, however as Mr Lapthorn and Ms Maria pointed out, that is ultimately a decision for the parents.

The guidelines for paediatric assessment mandate a complete and thorough examination.  Mr Lapthorn was consistent in all of his answers, both to investigators and under cross-examination that he was carrying out a thorough examination from head to toe as he had been taught to ascertain hydration status and investigate the cause of fever.  I accept he genuinely had in mind looking for and eliminating ticks and other infections.  As his counsel pointed out in submissions, this examination was done against a background of him having three daughters, one of which was recently diagnosed with thrush.

The evidence and Mr Lapthorn’s concessions were that the examination was indeed not necessary. But, said the Acting Deputy President (at [88]-[90]):

It is relevant however to give consideration to Mr Lapthorn’s actions in the context of real time and not with the benefit of hindsight.

It is difficult to be critical of a paramedic in a prehospital setting with a sick infant conducting a thorough examination (which was not in itself harmful) to eliminate concerns.  In hindsight, the thoroughness of the examination in this case was, as observed by Dr Tija, “unnecessary and not warranted”.  In hindsight it should not have occurred.

When the purpose of the conduct, that is a thorough examination to obtain clinical information, is the focus of consideration it is difficult to conclude that Mr Lapthorn acted with a wilful disregard for clinical practice.  The conduct alone does not satisfy me on reasonable grounds that because of the conduct he posed a serious risk to persons.

Carotid sinus massage

The issue here was that Mr Lapthorn performed this procedure on a patient in March 2015. The procedure ‘can significantly and suddenly reduce a patient’s heart rate and blood pressure.  However, it carries with it a risk of embolism in the brain or the heart’ ([94]). The evidence from Mr Lapthorn was ‘the technique was “taught many years ago” but had “gone out of vogue with QAS some time ago”’ ([99]). It was no longer part of accepted paramedic practice. As a result of an internal investigation, Mr Lapthorn ‘was placed on and completed a clinical development plan’.

The Acting Deputy President said (at [103]):

I accept that the use of the CSM by Mr Lapthorn was outside his authorised scope of practice and was potentially a risk to the patient.  I also note that as a consequence he completed a clinical education program which the QAS, in my view, appropriately concluded was the correct response to Mr Lapthorn’s conduct.  The gap in his clinical knowledge has been addressed and that he now properly concedes he should not have used the procedure.

Stocking drug kit with additional fentanyl

Fentanyl is an analgesic used for pain relief if a patient is allergic to morphine. In December 2013 the QAS authorised paramedics to carry 2 ampoules of fentanyl in their drug box. Mr Lapthorn and other paramedics found that 2 ampoules were not sufficient for many shifts so were in the habit of signing out more than 2 ampoules.  When this was discovered ([106]-[107]):

… He was spoken to by [his station officer] in December 2013 and told to adhere to the code of practice.

He said he complied with that request until the policy changed to permit five ampoules to be taken.  No evidence was provided to the contrary.  I accept Mr Lapthorn complied with the direction after he was spoken to.

The procedures for QAS paramedics was subsequently changed to allow paramedics to carry 5 ampoules ([104]).

Leaving the station against QAS policy

Mr Lapthorn lived 10 minutes from his station. The allegations about what he was meant to have done were unclear and inconsistent ([108]).  Regardless of the details Mr Lapthorn gave evidence (at [116]) that he:

…  was aware this had to be authorised and that he would in fact obtain permission not from the officer in charge but from operations support supervisors.  He said that those requests would be logged and there would be voice records available.

The Acting Deputy President said (at [117]):

I find in relation to this issue that Mr Lapthorn did on occasions shop and go home during a shift.  I have no reason to reject his evidence that he got permission from operational support to do so.  I also note that there is no evidence of any adverse consequences from this conduct.

Failure to complete administrative tasks

The final complaint was that Mr Lapthorn failed to complete certain administrative tasks in particular he failed to complete clinical reviews of the work of other paramedics and failed to complete regular vehicle check forms (not that he didn’t do the checks, just that he didn’t fill in the form).

At [123]-[124] the Acting Deputy President said:

In oral evidence, Mr Lapthorn conceded that he was recalcitrant in completing the CART audits.  He explained that he did not agree that staff should be reviewing their peers at a station.

It is noted that the practice has since been phased out.

As for the vehicle check forms, Mr Lapthorn conceded that he did not fill the forms in. He said (at [126]) ‘most paramedics at the station did not complete the check forms adequately’.

Did, or does Mr Lapthorn pose a risk to patients?

The ruling of QCAT was no, he did, and does not.

With respect to the examination of the baby, the Tribunal’s reasoning was explored, in detail, above, but to reiterate the Acting Deputy President said (at [90]):

When the purpose of the conduct, that is a thorough examination to obtain clinical information, is the focus of consideration it is difficult to conclude that Mr Lapthorn acted with a wilful disregard for clinical practice.  The conduct alone does not satisfy me on reasonable grounds that because of the conduct he posed a serious risk to persons.

With respect to the use of carotid sinus massage, the overstocking of fentanyl and travelling home during shift, the QAS had applied their internal quality control procedures, reminded Mr Lapthorn of the relevant policies and clinical issues and there had been no suggestion of any further transgression.

Further, with respect to fentanyl and the clinical audit scheme, the QAS protocols had been changed and now reflect what was Mr Lapthorn’s practice, that is paramedics are now allowed to stock five ampoules of fentanyl and the peer clinical audit has been abolished.

In making its case the Health Ombudsman relied on an

… expert report of psychologist Lars Marsdon to support the argument that Mr Lapthorn exhibited such a pattern of non-compliant behaviour that he presents a risk of engaging in harmful clinical practice in the future.

The Acting Deputy President was critical of that report as the psychologist never interviewed or met with Mr Lapthorn, relying instead on various statements that were given to him ([134]).   The Acting Deputy President said (at [132]) ‘I found Mr Marsdon’s report to be of no assistance in arriving at a conclusion about Mr Lapthorn’s conduct’.

At [155]-[156] the Acting Deputy President reached this conclusion:

The conduct referred to in these proceedings, being the clinical examination of the infant and the CMS in the context of his work performance history, in light of the insight displayed by Mr Lapthorn, does not support a finding of a real possibility that he will engage in some unidentified harmful clinical conduct in the future.

I am unable to be satisfied on reasonable grounds that he poses a serious risk and that an IPO [Interim Protection Order] is necessary to protect the public.

Take home lessons

As a precedent, this case stands for little. It is from a Tribunal low in the judicial hierarchy (see Accessing a judge or magistrate’s reasons for decision (November 18, 2016)).  The case depends entirely on its own facts to the finding that Mr Lapthorn posed no risk to the community is not relevant to the next case. There are however two lessons that I think can be learned from this case.

First that we live in a time if heightened awareness of the prevalence of, and dangers of, child sexual assault. Accordingly, people are attuned to observing anything they see as suspicious. You can also infer my own understanding of the seriousness of these issues by the deliberate efforts I’ve made at the start of this blog to make it clear that it was neither alleged, nor found, that Mr Lapthorn had engaged in sexual misconduct. I assume my blog reaches more people who might know or meet Mr Lapthorn than the published decision of QCAT. It is a fundamental principle of our legal system that justice must be seen to be done so courts and tribunals are public places and the outcomes published on the web for everyone to read, regardless of how many private details are released. The purpose is in part so people can read and learn from them so for me to republish and comment on the proceedings is part of the process, even though I know and am mindful of the fact that I am publishing personal details. In posts on this blog stories of things done by, and to, members of the emergency services are published and discussed.  In today’s world, I could discuss allegations of manslaughter, arson, criminal assault etc without putting such disclaimers, but a suggestion of sexual misconduct against children is in another category.  If the case were not called ‘Lapthorn v Office of the Health Ombudsman’ I might have tried to avoid using Mr Lapthorn’s name all together (see State of Queensland liable for paramedic negligence (December 22, 2016)).

But that heightened awareness is good. I suspect that there may be some who would comment that it was a shame, or an abuse of trust, that it was Mr Lapthorn’s clinical partner that reported the contact with the child’s genitals (see the comments, both on wordpress and FaceBook after the post MFB firefighter sacked for conduct before his employment (August 7, 2017)). But the attitude of ‘I trust my partner so my fears must be wrong’ or ‘we work on trust so I can’t report my genuine fears’ leads at best to continued sub-standard practice, at worst to corruption and the sort of scandals revealed by the Royal Commission into Institutional Responses to Child Sexual Abuse.

Mr Lapthorn’s partner said (at [10]) ‘“I couldn’t believe it. I didn’t know what to do or say” and “it was just something that was so random, it’s not something that we do.”  In her statement to her station officer ([53]) she said ‘“I wanted to say something but I opened my mouth and nothing came out”. The Acting Deputy President said (at [13]) ‘It was apparent the incident upset her and her oral evidence was consistent with her statement in that regard.’

Mr Lapthorn conceded that he should not have done the examination that he did and further he should have explained to the child’s mother and grandmother and his partner what he was doing and why (see [71]).  (It is worth noting that the child’s mother and grandmother were generally supportive of Mr Lapthorn, did not perceive that any conduct was suspicious or improper and were grateful for the care they received, see [37]-[38]).

In these circumstances, Mr Lapthorn’s partner was right to report her concerns.

Second, and the most important lesson is to remind us that just because allegations are made it does not mean they are true. It was, in my view, appropriate for Mr Lapthorn’s partner to raise her concerns and important for the Health Ombudsman to investigate and if he or she believed that an IPO was warranted, to issue one.

But again, the principle of Australian justice is that there checks to review those decisions by an independent arbiter, in this case QCAT. Remember that the Health Ombudsman is both the investigator and with respect to the IPO, the judge and one should not be a judge in one’s own cause (see also Conflict of interest and natural justice in an RFS Disciplinary hearing (October 25, 2017)).  QCAT sits as the arbiter to dispassionately review the evidence and the arguments.

And note also the comments about Mr Lapthorn’s conduct in this investigation ([69]):

In giving his oral evidence and under cross-examination, Mr Lapthorn presented as honest and non-confrontational.  He accepted reasonable propositions put to him and made concessions even when, apparently, not in his interest.

He gave statements to the Health Ombudsman. His answers to the investigators from the office of the Health Ombudsman and in cross examination were consistent ([79]). Whilst it is not always advisable to answer questions (at least not without legal advice first), a clear and consistent story goes a long way. (On the other hand, if a police officer says ‘I’m about to ask you some questions which you are not obliged to answer but anything you say or do will be taken down and may be used in evidence against you’ the best thing to do is to politely refuse to answer any further questions until you’ve seen a lawyer. And see Improper professional conduct when a doctor fails to render assistance at a motor vehicle accident (November 28, 2013) for a discussion on the consequences of telling inconsistent stories).

The take home lesson is just because you are asked hard questions, it does not mean you don’t have an answer. Just because you are asked to explain your conduct, it does not mean that there is no acceptable explanation. Mr Lapthorn knew what he’d done and why he’d done it. It would appear it was all for clinical reasons and even though it was not all according to the rule book, there was no danger to the patients.

I am reminded of a line (that I’ll probably misquote) of a colleague who used to tell his probationary trainees words to the effect ‘there are three ways to do things, the wrong way, the ambulance service way and my way’.  Identifying that Mr Lapthorn presented a ‘management challenge’ and sometimes deviated from the ‘book’ in order to provide better clinical management (eg by stocking five ampoules of fentanyl instead of two or conducting an examination that as an experienced father thought would give him better insight into the patient’s clinical condition and meet the requirement of a thorough head to toe examination) would not I suggest, make him alone in ambulance culture. But that did not make him a danger to others.

And operational paramedics may be reassured by the Acting Deputy President’s comment (at [89]) that:

It is difficult to be critical of a paramedic in a prehospital setting with a sick infant conducting a thorough examination (which was not in itself harmful) to eliminate concerns.

Conclusion

An investigation or an allegation does not prove that improper conduct occurred. A tribunal reviews the evidence to determine whether relevant legal tests have been met and natural justice allows the subject of the complaint to respond and test the evidence. Open and transparent justice means these allegations are tested and publicly reported to allow everyone to see what was alleged, what was found to be the facts and how conclusions were reached. This is traumatic but is better than letting agencies, whether it’s the police or the health ombudsman determine these matters in their own office.

Next time you read a report about a person being charged or alleged to have done something, don’t rush to believe it just because the media says it’s so (see the comments after Queensland woman acquitted of assault on paramedics (August 14, 2017)).