A complaint process has to go through two stages, the first stage is to determine whether the conduct complained of actually happened, and if it did, was it a breach of a relevant rule or code of conduct.  If the allegations are established the next stage is to determine the appropriate sanction.

In Macann v State of Queensland (Queensland Ambulance Service) [2024] QIRC 146 Mr Macann, a Queensland Ambulance Service (‘QAS’) paramedic was the subject of three complaints relating to his treatment of a young intoxicated man.  The relevant decision maker had determined that the complaints were established but before the issue of penalty was addressed, Mr Macann appealed to the Queensland Industrial Relations Commission.  The Commission held that the findings against Mr Macann in relation to 2 out of the 3 complaints were not ‘fair and reasonable’ and they were set aside.

Allegation A

Allegation A was that ‘while attending incident [number] you acted inappropriately towards a patient, calling them a “little bitch”.’

Mr Macaan denied using the words alleged. The Commission found that the decision maker relied on statements given by the patient’s two flatmates, Mr Smith and Ms Jones, but they had been interviewed together. Ms Jones agreed her recollection of the night was ‘poor’ ([111]).  Mr Smith asked Ms Jones if Mr Macaan had used the ‘little bitch’ phrase. This was not corroboration of that claim but rather Mr Smith was prompting Ms Jones. If Mr Smith was a witness he should have been separately interviewed. The decision maker also relied upon the complaint filed by the patient’s mother but she had not been there but was reporting what she heard and her previous impressions of Mr Macaan.  At [115]-[116] Commissioner Butler said:

The evidence relied upon to find that Allegation A was substantiated was not sufficiently strong, having regard to Briginshaw.

Having regard to the foregoing, it was not fair and reasonable to find that Allegation A was substantiated.

(For a discussion on the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 see The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024)).

Allegation B

This allegation was that ‘the Appellant “acted inappropriately towards a patient by demonstrating little respect for the patient’s situation and medical history.”  The Commission took the view that the allegation was poorly framed and did not adequately explain to Mr Macaan what it was he was alleged to have done.  At [118] Commissioner Butler said:

The particulars were confusing. Many of the paragraphs of “particulars” of the allegation were restatements of responses that Mr Macann had previously provided, during the earlier investigation, without a clear indication of why or how those restatements were particulars of the allegation. The allegation itself is in general and broad terms. Particularising it should have shed light on, not clouded, what was being put to Mr Macann for response. Mr Macann has a right to procedural fairness including being given a proper opportunity to respond. A proper opportunity to respond requires a clear statement of the issues.

The use of the viewer

The decision maker argued that the failure to refer to the ‘The Viewer’ (see QAS paramedics accessing patient information via ‘The Viewer’ for ‘follow up’ (October 20, 2023) and Accessing ‘The Viewer’ before accessing the patient (June 5, 2024)) showed Mr Macaan was not interested in obtaining the patient’s history to make a diagnosis. The Commissioner said (at [125], [127]):

… the decision-maker found that Mr Macann failed to recognise the patient’s vulnerability despite being familiar with the patient. Mr Medlin also found that Mr Macann’s priority was not the patient and alleviating his reported pain. There is a criticism of him for failing to look at The Viewer which seems to be taken as showing Mr Macann’s priority was not the patient and alleviating his reported pain. These findings and comments appear to go to the issue of whether Mr Macann dismissed any diagnosis other than anxiety…

With respect to the use of The Viewer the Commissioner said (at [131]:

It was not clear to me whether and if so the extent to which Ambulance officers are required to check patients’ medical history via “The Viewer” while attending on a patient. The Respondent’s submissions refer to times at which the Appellant “could have” checked The Viewer but stop short of saying he was required to do so.

Mr Macaan’s submission (at [40]) was that the claim he should have looked at the Viewer:

… disregards the relevant circumstances, all of which required the Appellant’s full attention, namely that the patient:

(a) was seeking reassurance from the Appellant;

(b) was of large stature making it unsafe for the Appellant to deal with the patient on his own;

(c) was prone to unpredictable movements;

(d) wanted to be taken into his home by his housemates at the time.

In any event, the Commissioner said, it could not be fair and reasonable to rely on Mr Macaan’s failure to access the Viewer because it was never put to him that this was an issue being considered as demonstrating a lack of care, or respect for the patient ([136]).

Commissioner Butler said (at [150]-[154]):

The allegation was broadly drawn, and the particulars so confusingly written, as to fail to afford the Appellant a proper opportunity to respond.

The documentary evidence favours a finding that Mr Macann did recognise vulnerabilities on the patient’s part. It favours a finding that Mr Macann did seek to alleviate the patient’s pain by the administration of paracetamol, which coincided with the pain score dropping from 4/10 to 0/10. There is nothing on the face of the decision to indicate what evidence if any the decision-maker relied upon to make findings to the contrary.

The Respondent did not put to Mr Macann the issue of whether his failure to look at The Viewer could form part of the basis for finding Allegation B to be substantiated.

The Appellant put forward four justifications or excuses for his failure to assist the patient up from the ground, and to the stretcher. The decision-maker misapprehended one and failed to consider the other three.

Having regard to the foregoing, it was not fair and reasonable to find that Allegation B was substantiated…

Allegation C

This was an allegation that Mr Macaan ‘failed to provide adequate clinical care’ and in particular failed to apply the QAS Clinical Practice Guidelines ([156]).  The gist of the complaint was that the CPGs require that an intoxicated person should be transported unless ‘the patient be able to walk unassisted, able to maintain their own safety, and left in the care of a responsible and sober person’ ([161]).

Mr Macaan’s response wat that the patient refused transport ([164]) but this was not documented as required by the CPGs. There was no record of ‘Clinical assessment findings’ and ‘Outcome of the QAS VIRCA process (Voluntary, Informed, Relevant, Capacity and Advice)’ ([168]). The decision maker said:

… you detail the process you say you followed aligning it to the VIRCA process; however, this is not documented in eARF [report number] as required. Instead, the eARF only contains a notation of “Transport not required following paramedic assessment.” I am therefore persuaded that you did not follow the requirements of Clinical Practice Guideline – Other/QAS Non-transport in relation to this matter.

The conclusion that Mr Macaan had not followed the relevant CPG was ‘fair and reasonable’ ([169]).

Discussion

When I first read this case, I took the view that there was little value in reporting it, but a correspondent wrote and said they were ‘curious to hear/read [my]… thoughts in regards to the viewer and the appropriate use or as stated by the respondent’ in this case.

My thoughts are we can take very little from this case. This case is more about Assistant Commissioner Medlin, the decision maker, than Mr Macaan.   In this case the tribunal was not assessing whether Mr Macaan’s conduct was reasonable in the circumstances, that is the Commission was not deciding whether it was ‘ok’ to refer to a patient as a ‘little bitch’ or whether Mr Macaan should or should not have looked at the Viewer. The Commission was looking at whether Mr Medlin could be satisfied that those things had happened.

Commissioner Butler ruled that, with respect to Allegation A the evidence was insufficient to support a finding that the words alleged to have been used had been said at all.  The decision reminds decision makers to carefully consider the evidence of witnesses including their capacity to remember events and focussing on evidence that goes to the issues. As the union representing Mr Macaan said (at [39]):

… the Respondent must be held to the same level of accountability that it expected to hold the Appellant to, in that it must abide by its own procedures, and that the failure to follow procedures led to a “reduced ability to credibly test the evidence” of Ms Jones and Mr Smith.  

The Commission did not say that Mr Macaan’s conduct was not a breach of any Code of Conduct nor that it was justified by the circumstances rather they said they could not be satisfied that it ever happened.

With respect to allegation B certainly the decision maker wanted to rely on the fact that Mr Macaan did not consult the Viewer to access the patient’s history (see [124]-[125] and [131]-[136]). The Commission ruled that this was neither fair nor reasonable. QAS alleged that Mr Macaan ‘acted inappropriately towards a patient by demonstrating little respect for the patient’s situation and medical history’ but did not spell out what it was that he did, or did not do, that was ‘inappropriate’ or demonstrated ‘little respect for the patient’s situation’.   When the decision maker gave his reasons for being satisfied that the allegation was made out, he relied on the fact that Mr Macaan had not consulted the Viewer but it was never made clear to Mr Macaan that this was the, or one of the, things that showed inappropriate behaviour or ‘little respect’ and so he had not addressed it when asked to respond to the allegation.  Because he was not put on notice that this was a basis for the allegation, he was not given ‘an opportunity to be heard in relation to it’ ([136]). Because this was not part of the allegation, the decision maker could not rely on that fact as part of his reasoning.

The case tells us nothing about the use of the Viewer. The Commission was not reviewing Mr Macaan’s decision to say that his decision not to consult the Viewer was reasonable. Nor did the Commission make a ruling that consulting the Viewer could or could not be evidence of inappropriate conduct. They said that in this case the decision maker could not rely on it because it was never put to Mr Macaan that this demonstrated his lack of ‘ respect for the patient’s situation and medical history’.    Again the case is of more relevance to decision makers reinforcing the need to give a person a clear indication of what it is they are alleged to have done, or not done, that constitutes a breach of discipline.

The only decision that was ‘fair and reasonable’ was the conclusion that Mr Macaan ‘ failed to provide adequate clinical care’ because he did not transport a person seriously affected by alcohol in accordance with the relevant CPG and/or he did not properly conduct, or at least record the result of, the VIRCA process to ensure that any stated refusal of transport was voluntary and that the patient had capacity to make that decision.  It will now be up to QAS to determine the appropriate action on that complaint and that complaint alone.

Conclusion

I was asked for ‘[my]… thoughts in regards to the viewer and the appropriate use or as stated by the respondent’ in this case’.  My thoughts are the case gives no guidance on the use of the Viewer. The best that can be said is that Assistant Commissioner Medlin thought the failure to consult the Viewer indicated a lack of concern for the patient and his history, but that the Assistant Commissioner’s conclusions on the matter were neither fair nor reasonable.

What we learn from the case is that decision makers must approach their task with care. They must ensure that a person is aware of what it is they are alleged to have done, or not done, that forms the basis of any allegation, and any evidence must be carefully considered, particularly in light of the precedent in Briginshaw v Briginshaw.  A decision maker must consider any response in reply which does not mean they have to accept a respondent’s claims or arguments but they have to demonstrate that they have considered them.  This case is about the process for managing disciplinary proceedings more than it is about the use of the ‘Viewer’ or appropriate ways to speak to a patient.

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.