In two unrelated cases, two Queensland paramedics have faced allegations of hitting their patients.  In both cases the allegations were considered by a delegate of QAS who found the allegations were proved. Before the question of an appropriate response or penalty was considered, the paramedics appealed to the Queensland Industrial Commission seeking to overturn the finding of misconduct.

In these cases the issue for the Commission is to determine whether the delegate’s conclusions were ‘fair and reasonable’. These are not a rehearing where the Commission comes to its own findings but a review of the original delegates process. In legal terms it means the Commission is performing a ‘judicial review’ not a ‘merits review’.

In both cases the Commission determined the matter ‘on the papers’ which means the Commissioner had the material that was before the QAS and the submissions the parties made in writing, but no further evidence was admitted and no-one gave evidence from the witness box.

Danaher v State of Queensland (Queensland Health) [2022] QIRC 407 (25 October 2022)

Mr Danaher is an experienced Advanced Care Paramedic.  In May 2021 he was working a night shift with another paramedic and a student. 

They were dispatched to attend upon a patient who was reportedly intoxicated and unconscious.  Mr Danaher was the patient care officer, which meant that he took primary responsibility for the care of the patient.  In the ambulance on the way to the Royal Brisbane and Women’s Hospital, the patient began vomiting and was wrapped in towels for the protection of her clothing and the equipment in the ambulance. During the transportation, the patient began to regain consciousness. [2].

Whilst there was a dispute as to what happened, Mr Danaher admitted (at [3]) ‘that he ‘flicked’ the patient on the side of the head.  The formal allegation was that he was guilty of misconduct when (at [4]) he ‘hit a female patient on the face with your hand whilst transporting the patient to hospital in an ambulance.’ 

Commissioner Pidgeon summarised Mr Danaher’s submissions to QAS (at [21]) as:

• Contact was made with the patient’s head by way of a flick, following the patient throwing a ‘sats probe’ at Mr Danaher.
• The witness to the interaction did not have a proper view of the interaction and, as a student, may not have had the experience to understand the situation.
• Earlier in that shift, Mr Danaher experienced ‘one of the most physically and emotionally traumatic experiences in his career with QAS’ and that on reflection, he should have withdrawn from duty after the first traumatic incident but he tried to continue working.
• Mr Danaher is concerned about the investigation process and says that the investigator excluded evidence provided by him during the investigation.
• The investigator did not take into consideration that one of the witnesses was driving and could not reliably recall matters, one of the witnesses could not clearly hear or see the patient and that no witness has provided a clear account of what he or the patient may have said.
• He was not mimicking the patient but using a style of communication to maintain the patient’s verbal communication and minimise the risk of escalation to physical behaviour.

The QAS delegate (at [14]-[19]) had the evidence of the student paramedic who, reluctantly, gave evidence that Mr Danaher had hit the patient, that Mr Danaher’s hand had come into contact with the student paramedic’s hand as she was, at the time, holding the patient’s head.  Given her (what I would think was understandable) reluctance to report a training officer the delegate could find no reason to think that she would exaggerate the incident but Mr Danaher had good reason to try to downplay its seriousness.  Mr Danaher agreed that the patient ‘recoiled’ at the contact to her face or head and that she said ‘Don’t hit me’ and he said ‘Don’t throw stuff at me.’

Having found that Mr Danaher had hit the patient on the face, the delegate turned to the question of whether there was a ‘reasonable excuse’ for this conduct.   The delegate considered (at [21]-[27]) that a sats probe was unlikely to cause ‘any pain, let alone injury’ whether it was thrown or accidentally flicked off the patient’s finger as she ‘was waving and flicking her hand around’.  Even if she did throw it, striking her was ‘’inappropriate, disproportionate, and contrary to the limitations proposed by the Clinical Practice Manual – Use of Force.’  With regard to an earlier event, described as ‘one of the most physically and emotionally traumatic experiences in his career’ it was noted that this was not recorded in any ambulance report. The fact that it was only raised during these proceedings made the delegate ‘concerned that Mr Danaher has seemingly only raised the issue as a means to further justify or minimise his conduct.’  The delegate determined that there was no reasonable excuse for Mr Danaher’s conduct.

On appeal, Mr Danaher’s submissions were against summarised by Commissioner Pidgeon (at [28]):

Submissions were filed by QAS and Mr Danaher filed further submissions in reply that need not be summarised other than Mr Danaher’s submission that the process was unfair and designed to come to a pre-determined outcome ([56] and [60]).

• The photo provided by [the QAS delegate] … is not a true depiction and the Student Officer’s view was obstructed.
• The Student Officer may have used the terms face and side of head interchangeably.
• It is not necessarily easy to implement textbook theory into stressful practical situations and this was a serious, threatening situation.
• The patient recoiled in surprise only, a heavy impact would have cause the Student Officer to remove her hand when contact was made.
• ‘Hit’ is an equivocal term for any type of strike.
• Mr Danaher reacted to the ‘intent’ of the patient and this ‘preceded’ his reaction.
• His action was reflexive and occurred immediately.
• Mr Danaher was assisted by a lawyer prior to making his statement. His response was ‘simply a collaborative attempt to explain & rationalise a behaviour, which was out of character’.
• Mr Danaher knew his actions were serious and he considered the worst case scenario of termination when speaking to the Operations Supervisor following the incident.
• Mr Danaher says that he knows the patient was exaggerating her level of consciousness and no inference should be made from him forming a view that the patient was not as unwell as first thought.
• Mr Danaher did not intentionally mock the patient. The witnesses statements ‘make vague references, with no clear recollection of specifics.’
• The incident Mr Danaher described as occurring earlier in the night occurred.  Mr Danaher says that the Student Officer was not asked about that incident in her interview.
• Mr Danaher says that he never recorded the incident he says occurred earlier in the night because he was not given time during his shift to complete the form and then his shift finished half way through.
• With regard to his description of the event that happened earlier in the night as ‘one of the most physically and emotionally traumatic experiences in my career with Queensland Ambulance’, Mr Danaher says that these were not his words and that he was assisted in preparing his initial rebuttal by a lawyer, who reformulated his statements.  Mr Danaher says that it ‘was clearly an exaggeration’ he ‘was never comfortable with’ but that it does not mean that it did not affect his state of mind later in the shift.
• Mr Danaher believes that he was always been honest about the events.
• Mr Danaher says that from the first moment he was confronted about the incident, he stated that he ‘flicked’ the patient on the side of the head with the back of his fingers.  The Appellant says this is confirmed in Officer Johnstone’s evidence statements.
• Mr Danaher’s description reflected an immediate recollection of events, exactly as they happened.

Having considered the evidence that was before QAS, Commissioner Pidgeon said (at [67]-[68]):

Having considered Investigation Report and after taking into account Mr Danaher’s criticisms of it, I find that it was open to the Investigator to determine that on the balance of probabilities, the allegation is capable of substantiation.

There is nothing in the material, including Mr Danaher’s own evidence, which serves to set aside the finding of the Investigator that Mr Danaher struck the patient on the head or face and that the flick or strike was disproportionate to the patient throwing a SATS probe weighing 19 grams in his direction or at his torso.

As for the process, Commissioner Pidgeon said (at [70]-[71]):

I am satisfied that Mr Danaher has been afforded procedural fairness throughout the disciplinary process so far.

Mr Danaher submits that the delegate had ‘pre-determined’ the outcome.  It seems to me that the delegate gave consideration to all of Mr Danaher’s submissions, but ultimately found that the allegation was substantiated and that there were grounds for discipline.  I understand that Mr Danaher disagrees with the outcome, however I do not find that there is evidence that it was ‘pre-determined’.

Commissioner Pidgeon reviewed the evidence and submissions and concluded (at [80]) that it ‘was open to the delegate to determine that, having taken into account all of Mr Danaher’s submissions, on the balance of probabilities, the allegation was substantiated.’ The next question is whether that conduct amounted to misconduct within the meaning of the Ambulance Service Act 1991 (Qld) s 18A; that is ([16]):

(a)        inappropriate or improper conduct in an official capacity; or

(b)       inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the ambulance service.

At [85]-[86] Commissioner Pidgeon said:

It is clear that a finding of misconduct requires there to have been some kind of deliberate departure from accepted standards. Having found the allegation substantiated on the balance of probabilities on the basis of a finding that Mr Danaher’s contact with the patient was intentional and involved some forethought, I find that it was open to the delegate to characterise the conduct as misconduct as provided for in s 18A of the Ambulance Service Act.

For the foregoing reasons, the decision appealed against is confirmed.

That is not the end of the matter. Prior to the appeal, Mr Danaher was advised that the delegate was (at [8]) ‘considering imposing the disciplinary action of termination of employment’ and Mr Danaher had been invited to make submissions where he could argue that some lesser penalty was appropriate. Given the finding of misconduct has been confirmed, the process will (or at least should) pick up from that point where Mr Danaher should be given further opportunity to make submissions as to penalty.

Fisher v Queensland Ambulance Service [2023] QIRC 39 (10 February 2023)

This case again involved an advance care paramedic who faced two allegations. They were (at [2]):

Allegation 1

It is alleged that at approximately 12:58:07 on 1 July 2021 at TUH, you inappropriately used force by taking hold of a female patient’s wrist.

Allegation 2

It is alleged that at approximately 12:58:09 on 1 July 2021 at TUH, you inappropriately caused injury to a female patient by striking her in the face with your closed fist.

It should be noted that the patient (Patient A) was not Mr Fisher’s patient, but a hospital patient who it was alleged was threating the patient who was in Mr Fisher’s care ([37]).

Allegation 1

With respect to allegation 1 Mr Fisher denied grabbing the patient’s wrist, rather he said (at [25]):

… that Patient A’s arm was raised toward the Appellant in a swinging motion parallel with the ground, and that the Appellant parried the forearm away with brief contact. The Appellant contends that characterising the contact as “taking hold” is not fair and reasonable, rather the contact was “fleeting, unaggressive, and not such as to cause harm.”

Mr Fisher relied on CCTV footage of the incident and supportive assessments of three officers who reviewed the footage and agreed that Mr Fisher’s response was reasonable to ‘move [her] arm out of the way’ ([26]).  Mr Fisher argued (at [27]) that ‘that the decision-maker unfairly failed to reconcile conflicting evidence between the eyewitness reports and CCTV footage and failed to reason why the CCTV footage was preferred.’  Commissioner McLennan (at [29]) agreed.  She said  (at [30]):

• Patient A put her left arm up toward the Appellant’s face;
• the Appellant parried Patient A’s forearm away with brief contact;
• the contact with Patient A’s arm was with an “open hand”;
• the contact described under Allegation One was fleeting, unaggressive, and not as to cause harm; and
• the Appellant did not “take hold” of Patient A’s wrist.

And (at [34]):

Based upon the CCTV footage and witness testimony, I cannot discern how the decision-maker was actually persuaded that the Appellant took hold of Patient A’s arm. Considering the consequences of the finding if proved, I do not accept that it was open to the decision-maker to be reasonably satisfied that the act occurred as alleged. 

Even so Mr Fisher had used force so Commissioner McLennan continued to proceed whether that was reasonable. Mr Fisher had ample support ([38]-[39]) from other paramedics at the scene and a hospital security officer.  Commissioner McLennan (at [55]) disagreed with the QAS finding that ‘that the initial action taken by the Appellant was an inappropriate use of force.’  She said (at [57]-[61]):

Decision-makers should not take narrow views or make generalised assumptions when dealing with circumstances like this – one where the Appellant and other officers present were faced with a difficult and delicate situation. As the definition of “reasonable” required consideration of what “a careful officer of a similar class (level of training and experience) would do when confronted with the exact same situation”, I would expect the decision-maker to take into consideration the observations of the other QAS officers present that day.

When assessing if an authorised officer had acted reasonably, the [QAS Occupational Safety Training-Violence Protection (OST-VP) Manual (2016)] … indicates regard should be had for circumstances including: the patient, mindset of bystanders, perceived level of danger to the patient and others, the need for urgent action, the circumstances surrounding that situation, and the environment itself…

My objective observations of the CCTV footage coupled with the eye witness testimony persuades me that the Appellant was taking care of a patient requiring medical attention. He then observes Patient A aggressively moving down the hall, pointing her finger at other officers, pointing her finger at his patient’s support person and then moving into a confined space between the wall and his patient on the stretcher. Patient A turns and focuses her attention on the Appellant’s patient. Based on the CCTV footage and eyewitness accounts, it is not unreasonable that the Appellant assessed there to be a risk that Patient A would either attack someone within that vicinity or continue down the hall and attack someone else.

After moving the support person out of the way, the CCTV footage displays the Appellant moving himself between his patient and Patient A. In his submission, the Appellant moved to create a sort of barrier and eyewitness testimony supports this position … The Respondent appears to take issue with the Appellant moving closer to Patient A rather than just merely standing against the stretcher. The decision-maker assertively concluded “The CCTV footage is clear, you did not, as you now say, move to “create a bit of a barrier.”” That conclusion lacks intelligible justification where the CCTV footage depicts the Appellant forming a barrier between Patient A and his patient.

My view is that not only did the Appellant create a barrier, he also created a buffer between Patient A and his patient. By moving towards Patient A, she retreated further away from the Appellant’s patient…

And at [65]:

It is easy with the benefit of hindsight to view CCTV footage and ponder how the situation could have been better handled. However, putting oneself in the shoes of the Appellant, it rings true that he perceived danger to those in his immediate vicinity and also a risk to those in the triage area. Although possible that neither the Appellant nor his patient would have been struck if the Appellant had not acted, it is also possible that someone else further down the hall may well have been. In light of the totality of circumstances, the decision-maker’s remark that “Nor do I accept that you could not have avoided the situation by running off “down the hall with the stretcher”” lacks intelligible justification and places an unreasonable assumption that there was a simple solution to what was clearly a difficult situation.

In summary Commissioner McLennan found that Mr Fisher did not grab the patient’s wrist but even if he had done so the level of force used was reasonable and consistent with the QAS Occupational Safety Training-Violence Protection (OST-VP) Manual (2016) and so (at [67]) ‘it was unreasonable for the decision-maker to determine that Allegation One is substantiated on the balance of probabilities.’

Allegation 2

The details of this allegation are not clearly set out but it appears that Mr Fisher struck the patient after he ‘was struck in the face by Patient A’ ([79]).  His response was to hit her in the face with a closed fist.  This was not disputed. At [68] Commissioner McLennan said:

Upon review of the CCTV footage, I accept it was reasonable for the decision-maker to conclude that the Appellant struck Patient A in the face with a closed fist. Upon review of the materials filed, it does not appear that the Appellant contests that fact either. The CCTV footage speaks for itself in this regard.

But, at [76]:

I find it cannot be “reasonable” under the Manual for the Appellant to have struck Patient A in the face with his closed fist, regardless of how difficult the situation was.

Commissioner McLennan set out (at [77]) factors relevant to that conclusion. They were:

• Patient A, albeit aggressive and verbally abusive, is a patient who is presumably unwell;
• striking a person with a closed fist is a strong use of force;
• no other method of restraint was first attempted following Patient A striking the Appellant;
• the Appellant might have walked away from Patient A after she struck him (although, as I have earlier observed, that may well have shunted the problem to another person further down the hall, who may not have been as well equipped to deal with the threat); and
• given the difference in stature between the Appellant and Patient A, the gravity of the closed fist punch appeared disproportionate.

And at [78]-[79]:

The Appellant indicated that because he did not expect Patient A to strike him, he “reacted without thinking. It was an involuntary reflex.” Although that may be the case, it is in direct contravention of s 1.5 of the Code of Conduct which required the Appellant to treat Patient A with courtesy, respect and present himself in a professional manner. In my view, that provision of the Code of Conduct [for the Queensland Public Service] does not exempt conduct which was “unplanned, spontaneous, unintentional, instinct”.

The Appellant was clearly thrust into a difficult situation. When attempting to diffuse the situation, the Appellant was struck in the face by Patient A. Unfortunately, the Appellant reacted with what appeared to be disproportionate force. I agree that conduct cannot be said to constitute self-defence. I accept the decision-maker’s assessment that the Appellant’s conduct was inappropriate and reject any contention that the finding in relation to Allegation Two was incorrectly reached.

Even though this appeal could not deal with the final outcome of the matter, Commissioner McLennan did note that the proposed disciplinary action was the termination of Mr Fisher’s employment.  Commissioner McLennan said (at [83]-[87]):

My view is that the Appellant sought to diffuse the situation, protect his patient and prevent the possibility of harm erupting in the triage area. I do not accept that the Appellant intentionally provoked the assault, nor did he intentionally escalate Patient A’s mood. The difficult circumstances and absence of other available resources warrant a more understanding approach to this matter.

I would urge QAS to take into account the difficulty of this specific situation which may have had a bearing on the Appellant’s actions, the fact he does not have a violent history, his initial intentions to protect and prevent the possibility of harm, the impact that termination would have on him as well as the possibility for the Appellant to receive further training and learn from this mistake.

I encourage the parties to collaboratively engage as to how the need for disciplinary action may be appropriately addressed.  I have recognised that QAS has not yet ‘determined’ the disciplinary action, but rather has only ‘proposed’ it. The above factors are significant and should be given the appropriate weight by QAS in determining whether termination is a fair and reasonable disciplinary action.

The devastating impact of termination mandates that such a penalty is not undertaken lightly. Certainly, a range of less extreme disciplinary measures are available under s 18B(1) of the Ambulance Service Act 1991 (Qld):

• reduction of classification level and a consequential change of duties
• transfer or redeployment to other ambulance service employment
• forfeiture or deferment of a remuneration increment or increase
• reduction of remuneration level
• imposition of a monetary penalty
• if a penalty is imposed, a direction that the amount of the penalty be deducted from the officer’s periodic remuneration payments
• a reprimand

In my view, those alternatives should be subject of measured and ongoing consideration.

Although not binding on the QAS, it is hoped the relevant decision maker will take into account Commissioner McLennan’s observations as to penalty.

Discussion

Both these cases reinforce the difficult circumstances that paramedics operate in, but people do get intoxicated, and aggressive and paramedics are required, unlike the rest of us, to confront and deal with those circumstances.  The law of self-defence, although not directly cited, allows the use of reasonable force to stop violence (Zecevic v DPP (1987) 61 ALJR 375), but it has never allowed force in vengeance or retaliation. 

The facts in both cases are not fully explored, but in both cases the paramedic hit the patient in the face (or head) after the patient either threw or flipped on saturation probe, or punched the paramedic. In either case hitting or punching the patient back was not then an act of self-defence, or more importantly in the context, a reasonable use of force as permitted by QAS and Queensland Public Sector training and procedures.

Given the recognition that first responders are subject to inevitable stresses that impact upon their mental health, and that many have faced many years of violence, on would also hope that a remedial rather than punitive approach would be in order. As Mr Danaher said (at [63]):

Throughout my career I have been threatened, assaulted, attacked, kicked, punched and spat on. I soldiered on without complaint.  I turned up for work, and just got on with it. I had over 600 hours of sick leave accumulated. Sometimes I even laughed and joked during the retelling of these incidents with colleagues. That’s how we cope. Sometimes our guard is down – in that brief moment I just simply reacted – I’d just had enough.

A remedial approach may be to take the paramedic off the road for a time, arrange appropriate counselling and support and see if they are fit to return to on-road duty; and if they are not perhaps there is alternative work (perhaps education or coordination), or transfer to another area of the public service and if that is not possible an option to retire rather than be dismissed.

It remains for QAS to determine, in both of these cases, whether in all the circumstances it really is appropriate for either or both to lose their employment given the time they have devoted to QAS and the Queensland community, what it means for QAS and Queensland Health more generally to lose their skills and experience and what it means for them to lose their career.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.