In Costello v State of Queensland (Department of Health – Queensland Ambulance Service) (No. 2)  QIRC 094 the applicant sought an order for reinstatement after he had been dismissed from Queensland Ambulance for misappropriation and self administration of methoxyflurane whilst on duty. Mr Costello argued ‘that his termination was harsh, unjust and unreasonable’.
On 2 June 2016 Paramedic Costello, an Advanced Care Paramedic, was working with a paramedic student and a graduate paramedic of 6 months experience. They were called to assist an elderly lady who had fallen and suffered a shoulder injury. The patient was given two doses of methoxyflurane and 5ml of morphine. Whilst at hospital, waiting to hand their patient over to the hospital’s care, Mr Costello excused himself to go to the bathroom.
Mr Costello’s partner, Mr Hoey recorded (at ) that a nurse observed Mr Costello stumble out of the bathroom. The nurse approached Mr Costello who said he was fine but out of concern for his welfare he raised it with Mr Hoey. Mr Hoey along with another paramedic went looking for him. They found him in a toilet cubicle. He was sitting on the toilet. The lid was closed and Mr Costello was fully dressed.
Officer Costello did not notice the other two officers standing at the door, there was the distinct smell of Methoxyflurane surrounding Officer Costello.
Officer Costello had a Penthrox whistle in his hand, with the wrist strap around his wrist, he appeared glassy eyed and emotional as well as having bloodshot eyes.
The matter was reported to a senior officer who spoke to those involved and asked them all to make notes of what they had observed. The second paramedic who assisted Mr Hoey in his search for Mr Costello reported (at ) that:
I saw Jay [Costello] sitting on the toilet, leaning forward, elbows on knees, hands together holding a Penthrox/Methoxyflurane whistle. The room smelt strongly of methoxyflurane, I did not see him put the whistle to his mouth, he did appear heavily under the influence. Jay repeated to Patrick [Hoey] that he did not use it, he’s just really stressed at the moment in regard to his daughter. Patrick and I stayed with him, talking with him and explaining that he needs to go home…
In an interview with a senior officer at the hospital, Mr Costello (at ) ‘denied that he had used the whistle and he explained he had found this whistle in his pocket whilst having a moment on toilet trying to de-stress over his child’s news’ (news that related to his child’s medical condition).
Officer Costello was suspended on fully pay pending further investigation (). There were further interviews with everyone involved (-).
Mr Costello gave an explanation for his behaviour insisting that he had placed the methoxyflurane in his pocket when it was dropped in the ambulance and when sitting on the toilet, reflecting on his daughter’s diagnosis and prognosis, he had felt it stabbing into him and so took it out of his pocket and held it in his hand intending to dispose of it when he returned to his colleagues.
The investigator’s assessment of the evidence was that the allegations against Mr Costello were established on the balance of probabilities and ‘that Officer Costello’s version lacks credibility’ (). Mr Costello was invited to show cause why disciplinary action should not be taken against him (). In his response Mr Costello submitted that given the serious nature of the allegations and the potential impact upon him, the investigator had to be satisfied to a level higher than ‘more probable than not’.
(In making that submission Mr Costello relied on the decision in Briginshaw v Briginshaw  HCA 34. In earlier post, Misfeasance in public office (June 18, 2013) I said this about the decision in Briginshaw:
Where an allegation is of fraud or other serious misconduct further, more convincing proof may be required to satisfy the court that, on the balance of probabilities the allegation is made out. In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved … It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty”…)
After considering Mr Costello’s submissions, Mr Hammond, Assistant Commissioner, Gold Coast Local Ambulance Service Network wrote to Mr Costello saying that he was satisfied the allegations had been made out and that he would be recommending disciplinary action which may include termination of employment. Mr Costello was invited to respond again to argue why that action should not happen. ‘He was also invited to provide an alternative outcome if he considered the proposed disciplinary action was inappropriate‘ ().
Mr Costello noted ():
… if Mr Hammond genuinely believed that he self-medicated methoxyflurane, then the termination of his employment, as opposed to rehabilitation back into the workforce, would be harsh, unjust and unreasonable…
Mr Hammond wrote ()
I consider that the disciplinary finding I have made is appropriate. Further I believe that in all the circumstances a disciplinary response is warranted and that the substantiated behaviour constitutes misconduct. I remain of the view that termination of employment is an appropriate response.
Therefore I am referring this matter to the relevant delegated authority, Deputy Commissioner Craig Emery for his determination …
Deputy Commissioner Craig Emery conducted further interviews with the two paramedic witnesses. He did that, he said (at ) because:
I was conscious of the seriousness of the proposed penalty of termination of Officer Costello’s employment, and considered that the onus was more heavily on me to ensure my decision was correct and proportionate to the conduct. In particular, I wanted to be sure that Officer Garrett and Officer Hoey were sure about the information they had provided.
Finally (at -) Bloomfield DP said:
… “having read the material very carefully and considering the matter, including evaluating all the material provided to me and facts presented to me”, he [Mr Emery] agreed with Mr Hammond’s recommendation that termination of Mr Costello’s employment was the appropriate remedy.
As such, on 31 October 2016, he finalised and signed a letter addressed to Mr Costello which informed him that he (Emery) had made the decision to terminate his employment and his reasons for having reached that decision. In advising Mr Costello of his termination, Mr Emery acknowledged the significance of the proposed action and its impact on him.
Queensland Industrial Relations Commission
The matter finally ended up in the Queensland Industrial Relations Commission. There were 8 hearing dates between 17 March and 8 December 2017 and the final decision was handed down on 25 June 2019- that is three years and three weeks after the event and 18 months after the last hearing date!
There were four witness called for Mr Costello and 11 for QAS. Details of the evidence called and submissions made go on for many paragraphs and pages and I cannot explore them all here, suffice to say arguments as to why the Commission should, or should not have found the allegations were proved and, if proved, why dismissal was or was not harsh, unjust and unreasonable were all forcibly presented.
Deputy President Bloomfield said [at ):
Having considered the matter at great length, I am satisfied that the Respondent has established, to my reasonable satisfaction, to the Briginshaw standard … that Mr Costello did misappropriate and use methoxyflurane in (at least) the toilet in which he was found by Mr Hoey and Ms Garrett on the evening of Thursday 2 June 2016.
He accepted that Mr Costello may not have deliberately taken methoxflurane into the bathroom in order to take it, but when in the bathroom he found the inhaler in his pocket and took it out. He said (at ):
My conclusion is that Mr Costello decided to use the Penthrox whistle to inhale some of the methoxyflurane in order to settle himself down before he returned to the triage area. As a qualified paramedic, he understood that methoxyflurane would reduce his anxiety and distress about the images he had seen on his mobile phone [regarding his child’s recently diagnosed medical condition]. Given the strength of the smell of methoxyflurane that both Mr Hoey and Ms Garrett smelt, it is also possible that he increased the dosage level by placing his finger over the diluter hole of the inhaler…
(There was also an allegation that Mr Costello has failed to comply with QAS procedures with respect to disposal of opioid drugs. Deputy President Bloomfield said he did not consider those allegations and restricted his ‘consideration of the merits of the Respondent’s decision to terminate Mr Costello’s employment to those matters contained in Allegations 1 and 2’ ie the misappropriation and self administration of methoxyflurane (see  and )).
As for the impact on Mr Costello of his dismissal the Deputy President said (at ):
… while relevant, the consequences for Mr Costello as a result of his loss of employment is but one matter which needs to be considered in deciding this Application. The primary consideration though, in my opinion, is the fact that the Respondent found, on the balance of probabilities, that Mr Costello used methoxyflurane while on duty, against a background where he denied (and continued to deny) that he had done so. If Mr Costello had admitted its use and explained the circumstances which led him to take that action, then the outcome (as Mr Emery indicated) might have been much different. Unfortunately, that is not what happened.
Ultimately, he decided (at ) that
… there was a sound or valid reason … for the summary termination of Mr Costello’s employment and that the procedures it [QAS] adopted which led to that decision were fair and reasonable.
Mr Costello’s application to return to his employment as a paramedic was refused.
It is hard to discuss the facts of this case as the arguments and evidence were long and contradictory. What we do know is that front line responders are subject to stresses that most of us are not (see The Senate Education and Employment References Committee The people behind 000: mental health of our first responders (February 2019, Commonwealth of Australia 2019)).
One would hope that an agency like QAS that became aware that a paramedic misappropriate and self-administered methoxyflurane after receiving news that their child was subject to poor medical diagnosis would focus on the paramedics well-being at the first instance. There could, one hopes, be steps to provide supervised practice and care to help the paramedic return to service rather than dismiss them. Such therapeutic action would however require the person to acknowledge that they had indeed taken the drugs and that was always in contest in this case.
With paramedic registration the issue will, to some extent be taken from the hands of the ambulance services. Whilst ambulance services will still be able to hire and fire staff, the question of registration will remain issues for relevant committees or tribunals acting under the Health Practitioner Regulation National Law. Under that law there are procedures to deal with paramedics who for whatever reason are impaired in their practice, and that reason may be their reaction to the stresses in their life and/or from drug use (see definition of ‘impairment’ Health Practitioner Regulation National Law s 5). The law is meant to be used such that ‘restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (Health Practitioner Regulation National Law s 3(3)(c)). If this really was a one-off event (and there was no evidence to the contrary) then there was also no evidence that this conduct impacted upon Mr Costello’s practice or posed a risk to patient safety. Ongoing drug usage may have but having identified that he did take this drug it was possible to provide some ongoing care- but of course that again would require him to admit that he had taken the methoxyflurane, something he consistently denied.
At the end of the day it is not for me to judge the position. The tribunal reviewed all the circumstances and found that it was more likely than not that Mr Costello did misappropriate and self-administer methoxyflurane and the decision to terminate his employment was not harsh, unjust or unreasonable.
I would say that regardless of what appears to be an unforgiving response, the time taken to resolve the matter adds to the feeling of disquiet over the whole event. Of course it’s hard to be forgiving if the person does not admit their error. If Mr Costello did use the methoxyflurane his original denials put him in a position where he may have been committed to a story no matter how the evidence develops; if he did not use the drugs no doubt his sense of injustice will continue.