In Gamblin v State of Queensland, (Queensland Ambulance Service) [2018] QIRC 129 Deputy President Swan, sitting as the Queensland Industrial Relations Commission, rejected a claim by a Queensland Ambulance Service (QAS) Paramedic that he had been the victim of unfair dismissal and dismissed his claim to be reinstated to his position with the QAS.
The facts
Mr Gamblin was an Advanced Care Paramedic with QAS. He commenced with QAS in 2008 and qualified as a full-time Advanced Care Paramedic in 2011. From January 2015 until his dismissal on 22 July 2016 he worked as an Advanced Care Paramedic on a casual basis.
On 29 June 2016 Mr Gamblin was working with a graduate paramedic. They transported a patient to the Gold Coast Robina Hospital. Whilst there another ambulance arrived. The two paramedics in the second ambulance were caring for a young woman who had been found intoxicated and who has been punched in the mouth. The paramedics caring for this young woman were able to rouse her at the scene and she walked, with assistance, to the ambulance. They did not believe she needed hospital care but they had been unable to locate anyone to care for her and they could not leave her where she was so she was transported to hospital. At [73]-[75] it is reported that:
… the Patient Care Officer in the ambulance [said that] … during the Patient’s transportation to the Hospital he monitored her and stated that “everything was fine”.
He formed the view that there was nothing out of ordinary in terms of the Patient’s responses. He had in fact removed the monitors from the Patient on her way to the Hospital as he believed that this was no longer required.
At the Hospital, the handover of the Patient to the triage nurse occurred and the triage nurse went to the patient to awaken her. The Patient was placed upright on the stretcher for this purpose.
(Deputy President Swan does not say this, but reading between the lines, I would infer that she was asleep rather than unconscious).
The paramedics responsible for this patient’s care, the triage nurse, and another paramedic in the hospital with another patient were all engaged in their various duties of completing paperwork etc.
Mr Gamblin, who had arrived at the hospital with his own patient and who had nothing to do with the treatment of this young intoxicated woman, without consulting the other paramedics, the triage nurse or the medical staff, approached the patient and inserted an Oropharyngeal Airway (OPA) into her mouth. The patient reacted and resisted this procedure. Mr Gamblin is seen to hold the OPA in place. He finally removes the airway and leaves the area. The entire process took between 52 and 53 seconds and was recorded by CCTV.
The treating paramedics observed, after Mr Gamblin’s intervention, that there was (at [84]) ‘blood and saliva around the patient’s mouth’ (see also [97]).
Mr Gamblin claimed that he intervened because he was concerned that a patient with a glasgow coma scale of 3 was not being properly treated and that she was at risk of a compromised airway. In essence his intervention was necessary, as a matter of urgency, to protect the patient’s wellbeing. The tribunal rejected this explanation. At [166]-[167] Deputy President Swan said:
A significant factor for consideration are the admissions by the Applicant of his failings on that morning. Those failings included the following:
- The Patient was not under his care;
- He had not conducted his own GCS assessment of the Patient;
- He had not brought into the triage area a full set of equipment;
- He had failed to measure the size of the OPA on the Patient. Rather, he had relied upon his own visual assessment of the size required;
- That he had not put the Patient in a supine position; and that
- He also had failed to record his involvement with the Patient on the relevant paper work.
I am unable to accept the claim that the Applicant held a genuine belief that he was required to intervene in the process with a Patient for whom he was not responsible. This is particularly so when the facts are that the Patient was already in an Emergency Department of a Hospital; and that the Patient was not his Patient and that he would not have had any direct knowledge of the Patient’s history. Further, given the setting of the incident, where there was a triage nurse who has seen the Patient; where the Patient had two specific Paramedics allocated to observing her; where there are Doctors who would be available if called; and where all the necessary medical equipment would be available to utilise if required, it is unbelievable to accept that the Applicant felt there was an urgent need for him to interfere in the treatment of this Patient.
So why did he do it? The evidence revealed that he was ‘showing off’ to his more junior partner and (at [27]) ‘that he used the OPA on the Patient as a means of showing … the Graduate Paramedic who was working with him on 29 June 2016, how to get a response from a patient using an OPA.’
Mr Gamblin’s partner (who was working his first shift with Mr Gamblin) gave evidence (at [57]-[59]) that:
On two occasions prior to the incident at the Hospital on 29 June 2016, the Applicant had talked … about being able to get a response from a patient who was not responding through the use of an OPA…
Mr [Gamblin’s partner]… had noticed at the Hospital that a triage nurse was attempting to get a response from a female Patient using a physical cue.
He recalled the Applicant at some point saying to him words to the effect “watch this” or “here watch this”.
Later, at [68]
He added that on 29 June 2016, in his view, the Applicant had wanted to show him how to insert an OPA. His opinion was that the Applicant was not concerned about the patient per se, but rather that he had wished to show [him] … how to insert an OPA for the purpose of identifying its efficacy.
At [183] Deputy President Swan said:
I have accepted the opinions of those who viewed this incident that it was the case that the Applicant was in effect “showing off” … his knowledge and capacity concerning the effective use of an OPA on a patient.
Mr Gamblin’s conduct was proved misbehaviour in that ([12]) he:
… conducted an unauthorised medical procedure on a patient who was in the care of other QAS Paramedics; and
… contravened QAS Procedures and Guidelines – namely:
- Clinical Practice Guidelines Neurological/Altered level of consciousness;
- Clinical Practice Procedures: Assessment/Glasgow Coma Scale; and
- Clinical Practice Procedures: Airway management/Oropharyngeal airway insertion.
Deputy President Swan reviewed the processes adopted by QAS in their investigation of the incident and found that the investigations had been properly conducted with no denial of natural justice. The decision to terminate Mr Gamblin’s employment was not ‘harsh, unjust or unreasonable’ and there was, therefore, no ‘unfair dismissal’ (see [6] and Industrial Relations Act 2016 (QLD) s 316).
Commentary
Criminal behaviour
Mr Gamblin was lucky not to be charged with a criminal offence. At [138] Deputy President Swan notes that ‘On 1 September 2016, QAS was told that by the Queensland Police Service that the Patient did not wish to proceed with criminal charges against the Applicant.’
I can’t say whether or not there was a criminal offence, but as has been noted on this blog often enough, consent is required before any treatment is administered. Consent is not required where a person is unable to consent eg because they are unconscious. In those circumstances treatment may be given where that treatment is reasonably necessary and in the patient’s best interests (see The doctrine of necessity – Explained (January 31, 2017)).
The inference is that this patient was not unconscious or, in any event, Mr Gamblin did not attempt to assess her level of consciousness. Further he introduced an OPA to show off to his partner, not because he was acting in her best interests. In those circumstances the defence of necessity would have provided no comfort to Mr Gamblin had he been charged (which is not to say he would have been convicted of any offence, only that the requirements for this defence do not appear to have been met).
The impact of registration
The consequence of this incident is that Mr Gamblin lost his employment. That was in 2016. It’s now 2018 and with the publication of this decision the incident and the consequences are public but they haven’t been until now. At [117] Deputy President Swan noted that by 2 October 2016 ‘the Applicant had obtained full-time employment with Ambulance Tasmania’. I cannot say whether Ambulance Tasmania knew or knows of this incident and what if any impact it may have now that the Tribunal’s decision has been published.
One argument for paramedic registration was that it would protect patients by making sure incidents of unprofessional conduct are identified and known. Should an incident like this occur once paramedics are registered, the Paramedicine Board will be able to take immediate action to restrict a paramedic’s practice pending investigation and determination of any complaint (Health Practitioner Regulation National Law, s 156). A paramedic who is subject to that action would not then be able to get a job with another ambulance service where that would be inconsistent with any action taken or conditions imposed by the Board. Further, if after determining the matter, it is determined that it is sufficiently serious, it can be referred to a Tribunal with the power to cancel the paramedics registration. Even if a person is not ‘struck off’ the register, conditions may be imposed on his or her right to practice or he or she may be required to undergo further education. The outcome of those proceedings will be public and any conditions noted on the register. If the paramedic then approached another ambulance service, provided they make the appropriate enquiry, they would know of the history before deciding if the person can or should be employed as a paramedic. This aspect of patient protection is a key feature of national registration.
Conclusion
A paramedic’s obligation is to act in the best interests of his or her patient. Using the patient as a ‘means to an end’, in this case using a vulnerable patient as a training aid to advance the skills of a more junior colleague, is unethical and probably criminal.
In this case, the tribunal found that QAS was justified in its decision to terminate Mr Gamblin’s employment. With paramedic registration there will also be the Paramedicine Board and ultimately a relevant Tribunal under the Health Practitioner Regulation National Law that will be empowered to take action to protect patients from improper conduct by registered paramedics.
Australian Emergency Law 
Prior to 2010 Registered HCP’s had State Registration. e.g. State Registered Nurse (SRN). The coming of National registration was welcomed by those who worked in border towns and had need to work in more than one State. It also prevented those struck off in one State, moving to another. It will be interesting to see if Mr Gamblin is successful in obtaining Registration with AHPRA and how that would effect his employment in Tasmania.
I think this article creates a very sinister portrayal of Mr Gamblin. Without mention of his previous appointments or work record, how is it possible to dismiss his claim that he genuinely believed the patient’s wellbeing was in danger? He did not follow protocol, but it does not seem like the other paramedics did either. If he is employed, then this suggests his reputation is better than this one incident. And while it may not have been ruled an unfair dismissal, does not mean his actions would prevent further registration – it was simply enough to legally fire him from that role. If his actions were so inappropriate, why didn’t anyone stop him? What disciplinary action did they receive? But this case isn’t about that anyway, it’s about Mr Gamblin taking the government to court for how they handled the incident. I fail to see a crime, everyone is entitled to this. Hopefully registration will help manage these scenarios in a more respectful way than terminations and court cases.
I don’t really understand the point of these comments. First you say ‘I think this article creates a very sinister portrayal of Mr Gamblin’. I’m not sure if you really mean what I wrote, or what Deputy President Swan wrote. If you read the post, and the judgement, there is mention of his work record. It is ‘possible to dismiss his claim that he genuinely believed the patient’s wellbeing was in danger’ because that is what courts and organisations like the Industrial Relations Commission, and humans, do all the time. We look at all the evidence, sometimes in a matter of seconds, in court rooms with much time and deliberation and we consider what everyone said, saw and reports now and we form a view about what we accept and what we do not. I might add that I didn’t ‘dismiss his claim’ the court did and hence my confusion that I’m not sure if you’re talking about what I wrote or the Commission’s opinion.
He did more than ‘not follow protocol’, according to the Commission, and the evidence, he put a patient through an invasive and unnecessary procedure. I’m not sure who you are talking about or on what basis you say ‘He did not follow protocol, but it does not seem like the other paramedics did either’. The other paramedics weren’t the subject of the hearing, so I have no idea what you are referring to here, nor why it would be relevant. Even if there had been failures by others it does not excuse poor conduct by another.
At the time of writing he was employed by Ambulance Tasmania. As I said in the post ‘I cannot say whether Ambulance Tasmania knew or knows of this incident and what if any impact it may have now that the Tribunal’s decision has been published.’ His subsequent employment with Ambulance Tasmania says nothing of his reputation if they did not know about it. If he remains employed with Ambulance Tasmania then indeed that may reflect well on him, but that doesn’t affect the outcome or the findings here. The IRC was not trying to decide if he was a good person but whether the allegations were made out and if they were, whether the decision to dismiss him from Queensland ambulance was unjust or not.
I did not say that his actions should prevent future registration. I said with registration the process to decide what was appropriate could be determined in public with a number of options because this wasn’t public until he brought this action for unfair dismissal.
How would you suggest anyone would have stopped him? ‘The paramedics responsible for this patient’s care, the triage nurse, and another paramedic in the hospital with another patient were all engaged in their various duties of completing paperwork etc.’ I’m not sure what you imagine could have happened or why you think they may have been subject to disciplinary action. I simply don’t understand what you think should have happened given you don’t, presumably, have access to any more facts than I do.
The case is about Mr Gamblin’s conduct. It is not ‘about Mr Gamblin taking the government to court for how they handled the incident’. Either way the decision to dismiss him was upheld.
You may ‘fail to see a crime’ but as I explained in the post it is likely that Mr Gamblin’s conduct was criminal. If however what you mean is you don’t seen any crime in challenging the decision, well you’re right but so what. He was dismissed for what he did to the patient, not for bringing an unfair dismissal case, so I’m really not sure what you mean.
You say ‘[h]opefully registration will help manage these scenarios in a more respectful way than terminations and court cases’ and I made my argument in the post for what registration may do.