| [2017] FWC 1131 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jirina Born
v
Mercy Hospitals Victoria Ltd
(U2016/7200)
COMMISSIONER LEE |
MELBOURNE, 6 MARCH 2017 |
Application for relief from unfair dismissal - whether dismissal was harsh, unjust or unreasonable - whether misconduct was serious misconduct - whether dismissal was disproportionate response - whether dismissal was harsh in the circumstances.
[1] This is an application for unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act).
[2] Ms Jirina Born (the Applicant) was dismissed from her employment with Mercy Hospitals Victoria Ltd (the Respondent). She was dismissed for alleged serious misconduct. The misconduct was breaching hospital procedure, acting outside of the scope of professional practice and causing serious risk to the health or safety of a patient. 1 The Applicant was summarily dismissed on 6 May 2016.
[3] The matter was heard before me in Melbourne on 24 and 25 October and 1 December 2016. Leave was granted for the parties to provide additional material on the correct approach to considering the seriousness of conduct. The last submission was received on 14 December 2016. Mr Bakri was granted permission to appear for the Applicant and Mr Tracey was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[4] The Applicant gave evidence on her own behalf. Evidence for the Applicant was also provided by:
[5] Evidence for the Respondent was provided by:
[6] Throughout the decision a number of medical terms are used which will be unfamiliar to those not in the medical profession. A helpful glossary of relevant medical terms was provided by counsel for the Applicant and this has been replicated as Appendix A to the decision.
Background
[7] The Applicant was employed by the Respondent as a Clinical Midwife Specialist and Clinical Support Midwife at the time she was dismissed. She had been employed by the Respondent for a period of over 30 years.
[8] The Applicant was dismissed for administering a drug (Oxytocin) to a multigravida woman in the second stage of labour, outside of her scope of practice and without a medical order. Her letter of termination dated 6 May 2016 states as follows, omitting formal parts:
“I am writing to you to confirm the termination of your employment which was communicated to you on 5 May 2015[sic] at the meeting attended by you and Australian Nursing and Midwifery Federation representatives Ms Toni Coughlin and Ms Nicole Smith.
During the meeting we discussed the outcome of the investigation undertaken into the allegation that you initiated and administered an oxytocin infusion on 13 April 2016.
As discussed during the meeting, your conduct:
We consider that your actions constitute serious misconduct warranting summary dismissal without notice.
You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter.
Please return all Mercy Health property including your Mercy Health ID badge and lanyard in the enclosed envelope.
The ‘Employee Assistance Program’ is a self-referral program available to employees and their immediate family 24 hours 7 days a week on 1300 361 008.” 10
[9] Ms Ooi the ANUM in charge on the day in question was also dismissed by the Respondent. Her dismissal was connected to the events of 13 April. As mentioned above, Ms Ooi was ordered to attend to give evidence at the request of the Respondent.
[10] The key controversy in this matter was put squarely by counsel for the Applicant in his introduction as follows:
“I want to make it clear now, Commissioner, that it is uncontroversial that administering the medication without the medical order was outside of the scope of Ms Born’s professional practice and a breach of procedure. What is in controversy and key in this proceeding is whether the administration of the medication did cause a serious risk to the health and safety of the patient and, critically, whether the dismissal in the particular circumstances of this case was justified, so whether it was a proportionate response to the misconduct.” 11
[11] The primary remedy sought by the Applicant is reinstatement without loss of pay.
[12] The Respondent submits that in all the circumstances the Commission should find that the Applicant engaged in serious misconduct that was wilful and deliberate 12 and that the dismissal was not unfair. In the event that the Commission found the dismissal was unfair, reinstatement is strongly opposed by the Respondent.
The law to be applied
[13] Under the Act, a person is protected from unfair dismissal if:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[14] I find the Applicant is a person protected from unfair dismissal as she had completed the minimum employment period and an enterprise agreement applied to the Applicant in relation to her employment.
[15] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[16] With regard to s.385 it is not in dispute that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.
[17] With regard to s.385(c) of the Act, the Respondent is not a small business. The Small Business Fair Dismissal Code does not apply in this matter.
[18] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.
[19] The only matter for consideration is whether the dismissal was harsh, unjust or unreasonable (s.385(b) of the Act).
[20] Section 387 of the Act provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[21] Serious misconduct is defined in s.12 of the Act as having the meaning prescribed by the regulations. Regulation 1.07 in the Fair Work Regulations 2009 provides as follows;
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
The evidence
[22] A number of key facts were agreed between the parties as follows:
1. The Applicant and the Respondent agree on the following facts in this matter.
2. The Applicant is a Registered Nurse and a Registered Midwife.
3. The Applicant was employed by the Respondent from 1984 until 6 May 2016 (a period of 32 years).
4. In 1984 the Applicant completed her midwifery training with the Respondent (which was known then as Mercy Maternity Hospital).
5. At the time of her dismissal the Applicant was employed as a Clinical Midwife Specialist and Clinical Support Midwife at the Heidelberg campus and worked on a part time basis for 32 hours a week (two days per week as a Clinical Midwife Specialist and two days as a Clinical Support Midwife).
6. Prior to the events of 13 April 2016 the Applicant had not been the subject of any performance management, performance counselling and had never been the subject of any disciplinary action in relation to her performance or conduct.
7. On 13 April 2016 the Applicant administered Oxytocin to a multigravida patient in the second stage of labour without a doctor’s order or review.
8. Oxytocin is used, inter alia, to augment labour and increases the intensity and frequency of contractions.
9. A midwife should not administer Oxytocin without first obtaining a medication Order.
10. The Applicant did not make any attempts to contact a doctor and obtain an order for the medication before administering it to the patient.
11. The Applicant’s actions in administering the Oxytocin amounted to misconduct.
12. Oxytocin is a Schedule 4 poison under the Poisons Standard. The administration of Schedule 4 poisons is governed by the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) (collectively, the drugs legislation).
13. Nurses and midwives are not permitted to administer Schedule 4 poisons other than in accordance with the drugs legislation.
14. When the patient was next reviewed by a doctor after the Oxytocin had been administered, the doctor ordered that the medication immediately be stopped.
15. There was no detriment caused to the patient or the baby by the administration of Oxytocin to the patient in the period before Dr Mooney ordered that the medication be stopped.
16. A disciplinary investigation was conducted by the Respondent prior to the dismissal.
17. The Applicant never denied the conduct during the disciplinary investigation.
18. The Applicant was apologetic at the first meeting held between her and the Respondent during the disciplinary investigation.
19. The Applicant was dismissed on 6 May 2016.
20. On or around 22 May 2016 the Respondent made a mandatory notification about the incident to the Australian Health Practitioner Regulation Agency (AHPRA) (the notification).
21. The Nursing and Midwifery Board of Australia (NMBA) assessed the notification and issued the Applicant with a caution in the terms of annexure JB-4.
22. The Applicant has taken steps to mitigate her loss.
23. The Applicant chose not to apply for any permanent work as a midwife following her termination, and had not done so at the time her application was heard.
24. The Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012 - 2016 (the Agreement) applied to the Applicant in respect of her employment with the Respondent at all material times.(footnotes omitted) 13
The events of 13 April 2016
The decision to administer Syntocinon (the brand name of Oxytocin)
[23] On 13 April, the Applicant was rostered to work in her capacity as a clinical support midwife. When she attended the birth suite, she was asked by the midwifery staff if she could support a student who was looking after a woman in labour (the patient). The Applicant said in her statement that there were only seven staff rostered at the time, suggesting there was a shortage of staff. 14 Ms Patrick gave evidence (dealt with later in the decision) that there was not a shortage of staff and staffing in the birth suite was one employee in excess of the required ratio (see paragraph [111]).
[24] The Applicant took over the care of the patient. At about the same time, the patient had an epidural inserted for pain management. The Applicant then monitored the patient’s vital signs in accordance with procedure and the student midwife monitored the patient’s contractions. 15
[25] Dr Mooney’s evidence is that she met with the patient at around 9:25am while doing a routine round of the labour wards. Dr Medwin accompanied Dr Mooney on the round. Dr Mooney felt the patient’s abdomen and recalls that it didn’t feel like the baby was a big baby. She considered the CTG heart trace of the baby and otherwise did not examine the patient. At that time, Dr Mooney said that she would like the patient to be assessed again in one hour if she had not delivered the baby. 16
[26] According to the patients progress notes 17 a midwife undertook a vaginal examination of the patient at 10:00am and found the cervix to be fully dilated indicating the second stage of labour had commenced.18 The Applicant claimed at the hearing that the vaginal examination was undertaken by both Ms Jessica Verbeek, midwife, and the student midwife.19 The Applicant confirmed that she herself did not conduct a vaginal examination before administering the Syntocinon.20
[27] The Applicant asserts that “It is generally accepted that a multigravida woman should be left in the second stage of labour for no longer than one hour before assessing her with a view to intervention”. 21 I note that there was contradictory evidence on whether intervention was required which is dealt with later in the decision.
[28] At 10:00am, the Applicant commenced monitoring the patient’s contractions. Her evidence is that she observed that the patient’s contractions were two contractions every 10 minutes. The Applicant notes that this is not consistent with the student midwife progress notes which record that the patient was having 3-4 contractions in every 10 minutes. The Applicant stated that she could feel that the foetal head had not yet fully descended into the pelvis. 22
[29] On the basis of her observations, the Applicant formed the following view:
“Based on my assessment of the progress of the labour and review of the patient’s notes, it was my clinical opinion that the frequency, intensity and duration of the patient’s contractions had eased off following the administration of epidural. According to the CTG trace, the patient’s contractions were less frequent and weaker than prior to the administration of epidural.” 23
[30] At about 11:00am the Applicants evidence is that she was approached by Ms Ooi, the ANUM. The Applicant claims:
“Phaik Lee [Ms Ooi] asked me why the patient had not yet birthed and why the labour was taking so long. Because there were other women in active labour in the department, the patient’s birthing room was needed for other patients. I also believe that Phaik Lee approached me because she thought I wasn’t doing much at this stage in terms of actively managing and progressing the labour.” 24
[31] The Applicant claims that she told Ms Ooi that it was her view that the patient’s contractions had eased off following the administration of the epidural and she suggested that the patient needed some Syntocinon to augment the labour. Ms Ooi agrees in general terms that was what the Applicant said to her. 25 The Applicant states that is not uncommon for contractions to ease off following the administration of an epidural.26
[32] Ms Ooi says it was the Applicant that approached her at the nursing station. 27 Ms Ooi disputes that she approached the Applicant at 11:00am and disputes that she asked her why the patient had not yet birthed.28 However, on cross-examination Ms Ooi conceded she probably did ask her why the patient had not yet birthed29 but disputed that she put the Applicant under any pressure.30
[33] On cross-examination, the Applicant was vague about whether Ms Ooi simply queried why the patient had not birthed and why the labour was taking so long or whether she also told her the room needed to be vacated. 31 The Applicant claimed during the hearing that she was “encouraged” to get the baby delivered by Ms Ooi.32
[34] The Applicant says after reviewing the data together, “Phaik Lee [Ms Ooi] agreed with me that the patient’s labour needed to be augmented with Syntocinon”. 33 Ms Ooi agrees that this is what occurred.34
[35] The Applicant then states that she went to the storage room, got the IV fluid bag, then went to the medication room to retrieve the Syntocinon. She took both items to the desk and checked both items with Ms Ooi and they both signed the intravenous fluid order record at 1120 hours. I note that Ms Ooi claims that the Applicant already had the drug and solution at this point. 35
[36] The Applicant makes the following statements which are important in the consideration of this matter:
“At the time that Phaik Lee [Ms Ooi] and I signed the intravenous fluid order chart, there was no medical officer’s order for the medication. Phaik Lee directed me to inform the doctors about the infusion when they returned from theatre and get the order signed by a member of medical staff. Phaik Lee was aware that I was going to commence the infusion and then get the order signed by a medical officer when one of them returned from theatre. I believe that I had documented my actions in the patient’s progress notes.” 36
[37] Ms Ooi disputes this claiming she specifically said to the Applicant “can you notify the doctor before you put up the Syntocinon infusion?” 37 Ms Ooi says she did not specify a time that the doctor was to be notified. She says that she told the Applicant that following the preparation of the solution the Applicant is to ring the doctor.38 However, inconsistent with that evidence, Ms Ooi also says that when she agreed that administering Oxytocin was appropriate she said “it’s fine, has the doctor been notified?” and that the Applicant said she would do so when the ampule of Syntocinon had been checked.39 Ms Ooi assumed that the Applicant would ring the doctor and get the order.40
[38] Ms Ooi’s evidence appears to be inconsistent with what was in her own unfair dismissal application. 41 In that application Ms Ooi said that the Applicant had already spoken to the doctor and had a written and signed prescription.42 Counsel for the Applicant tendered a statement that Ms Ooi made during the investigation by the Respondent into the incident.43 In that statement Ms Ooi said she assumed that the doctors were informed by telephone. It does not say that she instructed the Applicant to get a medical order. The evidence of Ms Ooi is very inconsistent on the issue of whether she knew, assumed or directed the Applicant in respect of obtaining a medical order.
[39] Ms Ooi was clear in her evidence that at the time she signed the chart, there was no time (of 11.20) written on the drug chart and no doctors signature. 44 However, this is contrary to the Applicant’s evidence who claims that the drug chart was signed by her and Ms Ooi at 11:20 hours.45 Ms Ooi agrees the proper procedure is to not sign the chart until the medical officer has signed it.46
[40] The Applicants evidence in chief as to why she did not obtain a medical order prior to administering the medication was as follows:
“I don’t know why I did not wait to discuss the Syntocinon infusion with a doctor prior to administering it. At the time I prepared the infusion there were no doctors in the birth suite. It was my understanding that all the doctors were in theatre. I did not know when they were expected to return to the birth suite. It would have been possible for Phaik Lee [Ms Ooi] or me to page one of the doctors, who may have answered the inquiry. I am aware that Syntocinon is a Schedule 4 medication according to the Drugs and Poisons Regulations and needs the order of a medical officer prior to administration.” 47
[41] As to the availability of medical officers, Dr Mooney gave unchallenged evidence as to the various ways that doctors, when in theatre, are still contactable by nursing and midwifery staff, including on the day in question. She confirmed that she did not receive a phone call or page from the Applicant or any other person in relation to the patient while she was in the operating theatre. 48 It is an agreed fact that the Applicant did not make any attempts to contact a doctor and obtain an order for the medication before administering it to the patient.49
[42] The Applicant claims that she assessed the patient for risk factors prior to commencing the Syntocinon infusion. This included assessing foetal heart rate (a possible indicator of obstructed labour) and the patient’s observations. The Applicant considered these factors to be normal. 50 The Applicant claimed during the hearing that she made additional patient notes which were not in evidence.51 These notes were not produced during the hearing. I deal with the claims of the Applicant about the claimed additional notes and the associated issues of legal professional privilege later in the decision.
[43] The Applicant concedes that the fact the patient was not having excessive contractions can be an indication of obstructed labour. However, despite that observation and the recognition that this can be an indication of obstructed labour, the Applicant states “Based on my assessment there was no risk in commencing the infusion. The patient’s observations were within normal limits and the foetal heart rate indicated no foetal distress or compromise. The only significant issue was the decreased frequency and intensity of the contractions, which demonstrated that there was a need for intervention to progress to delivery” (emphasis added). 52 The Applicant’s evidence is that she commenced the infusion at the lowest rate possible under the Mercy Health protocol for the administration of Syntocinon.53
[44] After Ms Ooi and the Applicant signed off on the intravenous fluid, the Applicant went to the patient’s room and put up the infusion. It is not in dispute that neither the Applicant nor Ms Ooi had obtained a medical order prior to the infusion being administered to the patient. Ms Ooi agrees that she saw the Applicant mixing up the solution but did not see her actually administer the drug. 54
[45] Dr Mooney gave evidence that at approximately 11:30am while she was still in theatre, she asked Dr Medwin to review the patient as she had not heard anything regarding her status. Dr Medwin was in the operating theatre with Dr Mooney and a Dr Israelsohn most of the morning. Dr Medwin went to reassess the patient at the request of Dr Mooney. 55 On the Applicant’s time estimate, at about 11:40am Dr Medwin returned from theatre. The Applicant says that she gave the doctor a report on the patient’s condition and told him the patient was fully dilated, that contractions had eased off and that the Syntocinon had commenced in order to augment the labour.
[46] Dr Medwin states that as he approached the patients room the Applicant “…stopped me and asked me what I was doing” and he replied that he was going to go in and check on the patient. Dr Medwin claims that the Applicant said to him that the she had just reassessed the patient and that the patient was resting; that he didn’t need to go into the patients room; he was to leave the patient alone as she had reassessed the patient he did not need to see her. Dr Medwin also claims: “The Applicant physically stood between me and the door to the patient’s room”. 56
[47] The Applicant stated during cross-examination that she did not stop Dr Medwin and ask him what he was doing. 57 However, she later claimed she did not “remember the incident whatsoever”.58 Later still the Applicant says she remembers the discussion with Dr Medwin and how Ms Ooi and her spent quite a bit of time talking with Dr Medwin about “why we did it”.59 The Applicant is clear that she did not stop Dr Medwin from entering the patients room.60 The Applicant agreed on cross-examination that she said “I’ve examined them already” and that in saying that she was in effect saying “you shouldn’t examine the patient, I’ve done it already”.61
[48] The Applicant believes that the doctor decided to not enter the room of his own accord. Dr Medwin disagrees. Dr Medwin says, “I felt that the Applicant stopped me from entering the room”. 62 On cross-examination Dr Medwin said that normally when he wanted to get past someone he would say “excuse me” and would make an attempt to walk past them. However, he did not do so on this occasion as “she was standing between me and the patient’s door”.63
[49] The following exchange on cross-examination provides some insight into what Dr Medwin was thinking and feeling at the time:
“You can’t say that you were prevented from entering the room when you didn’t even use the word “excuse me?”---I think the nature of which the interaction was undertaken inferred that I was denied. I felt that that was not the right thing to do and so, as the resident, I felt that I had to alert Dr Mooney, who was my senior at the time, that I wasn’t allowed to see the patient and so needed to be reviewed by someone more senior than myself. This situation, I felt, needed to be resolved quickly.
Dr Medwin, what I suggest to you is that if you felt that you were being prevented from doing your job, the first thing that you would have done is raise it with that midwife and say excuse me, I do want to go in there. I suggest to you that that’s what you would have done immediately and told her that it was unacceptable that you couldn’t go in the room? -I think as a resident doctor of 18 months’ experience as opposed to a midwife who’s had 20 years of experience that that interaction is quite intimidating and therefore I felt I had to escalate it through the channels that I felt necessary.” 64
[50] Ultimately, Dr Medwin agreed that it was a fair statement that he felt uncomfortable to make it clear to the Applicant that he wanted to enter. 65 Dr Medwin claims that the Applicant has prevented him from seeing patients on other occasions.66
[51] The Applicant asked the doctor to sign the order for the Syntocinon and claims he did so without raising any concerns. She also says that the doctor checked the CTG trace monitor at the desk before he signed the form. 67 Dr Medwin agrees that the Applicant told him she had started the patient on Syntocinon. He agrees that he then signed the order for Oxytocin which was included in a “stack of papers”.68 The Applicant claims that she only gave him one piece of paper to sign, not a stack of papers as asserted by Dr Medwin.69
[52] Dr Medwin agrees that he didn’t say anything to the Applicant about the administration of the Oxytocin at that time. 70 On cross-examination it was put to him and he agreed that he didn’t say anything about the Oxytocin because in his view it wasn’t a serious issue.71 When asked to clarify his view as to whether the administration of medication was an acceptable decision he replied: “I think at the time I wasn’t aware that that wasn’t an unacceptable decision, but having learnt from that experience I now know that it’s not”.72
[53] Subsequent to Dr Medwin attending, the Applicant increased the rate of Syntocinon as on her assessment the patient’s contractions increased in strength and frequency. The Applicant claims that the starting rate of Syntocinon was at a low level and “unlikely to cause an obstructed labour” and the increased rate was still at a “relatively” low level. 73
[54] Meanwhile, Dr Medwin, who was not happy with what he considered to be a denial of access to the patient’s room, returned to theatre and says he told Dr Mooney that the patient had been given Oxytocin. 74 Dr Mooney can’t recall if Dr Medwin told her that he had retrospectively signed an order to administer Oxytocin to the patient. She does recall that he told her that the midwife would not permit him to enter the room. She felt it was not fair to send Dr Medwin back to review the patient as he is a junior doctor and “…there can be a difficult dynamic between doctors and midwives at times when opinions differ”.75
[55] Dr Medwin and Dr Mooney then returned to the patient’s room “within 5 minutes”. 76 This evidence is inconsistent with the patient notes which record Dr Medwin attending at 11:40am on the patient then returning at 12:10pm.77 While Dr Medwin was consistent in his evidence that he went straight back to theatre and returned minutes later, he said he could not explain the time discrepancy.78
[56] The Applicant agrees that at 12:10pm Dr Mooney attended on the patient. 79 Dr Mooney called the Applicant out of the room and told her to stop the Syntocinon administration. The Applicant does not dispute that fact.80 Dr Medwin says that the Applicant stated that “…she was just taking some initiative”.81 The Applicant disputes that she said that.82 The infusion was stopped at 12:15pm. According to the Applicant, Dr Mooney took issue with the administration of the Syntocinon without a medical order and told her she did not have the authority to do that.83 Consistent with this Dr Mooney said that the decision to administer Oxytocin was inappropriate and requested that the infusion be stopped. Her notations on the patient’s notes are consistent with this evidence.84
[57] From 12:05pm the Applicant says that she encouraged the patient to push and at this time the baby’s head had descended down the birth canal and was visible when parting the labia. 85 Dr Mooney’s evidence is that after she directed the Syntocinon be stopped she examined the patient and determined it was time for her to start pushing. She does not recall that the patient was actively pushing when she entered the room. Dr Mooney said at the time there was no evidence the birth was obstructed. She asked to be notified if the baby was not delivered within the next 30 minutes.86 Dr Mooney subsequently submitted a report on 15 April 2016 to the Victorian Health Management System in relation to the Oxytocin infusion, at the suggestion of Dr Israelsohn.87
[58] The patient’s baby was born without complication at 12:30pm. The Applicant claims that it appears from the patient’s progress notes that the infusion augmented the labour because the head was in view at 12:20pm and the baby was born at 12:30pm. It is an agreed fact that no detriment was caused to the patient or the baby by the administration of Oxytocin to the patient in the period before Dr Mooney ordered that the medication be stopped. 88
[59] Professor Permezel gave evidence for the Respondent. Although Professor Permezel works for the Respondent he was not directly involved with the events of 13 April. His evidence is by way of an opinion, having reviewed the patient notes in relation to the incident, of the appropriateness of the Applicants conduct with reference to standard clinical care.
[60] Professor Permezel commences his evidence with the following statement:
“To put it simply, I consider that it is wrong and potentially dangerous for a midwife to initiate an infusion of oxytocin in a woman who is giving birth for the second or subsequent time (known as a multigravida or multigravid patient) in the second stage of labour. The administration of the medication should be a decision made by an obstetrician, after a thorough and careful assessment of all prevailing circumstances. The Applicant has broken the law in initiating the oxytocin infusion without a medical order and has engaged in a practice that increased the likelihood of a poor outcome.” 89
[61] He explains that the first stage of labour is when the woman’s contractions have begun and the cervix begins to dilate. The second stage of labour is once the patient is fully dilated and the third stage of labour begins when a woman has delivered her baby and ends once the placenta and membranes have been delivered. His evidence is that it is very uncommon to make a decision to administer Oxytocin to a multigravida [patient] in established spontaneous labour whose labour is not progressing, and even less common to administer Oxytocin to a multigravida in the second stage of labour. 90
[62] The Respondent’s labour and birth clinical guideline was included in Professor Permezel’s evidence at Annexure MP-3. Those guidelines make reference to the use of Oxytocin, in the context of the first stage of labour, for a multiparous patient being “rarely required”. The guidelines state “consideration for Oxytocin to be discussed with the obstetric consultant prior to commencement”. 91 There is also a reference to the Oxytocin infusion for induction and augmentation of labour clinical guideline.
[63] In respect of the second stage of labour for multiparous women, the guidelines provide as follows:
“ Birth is expected to occur within 1 hour of active pushing. 1 hour for passive descent may have been accepted prior to pushing commenced.
The CONSULTANT on duty should be informed if an instrumental delivery is considered necessary in the multiparous patient who has been pushing well for 1 hour.” 92
[64] In his second witness statement Professor Permezel accepted that “The use of Oxytocin may have been prudent if the medical team had fully assessed the patient, and had assessed the risk of rupture was extremely unlikely and also considered the availability of contingencies for emergency care should that have become necessary”. 93 On cross-examination Professor Permezel confirms that the administration of Oxytocin to a multigravida patient could be clinically justified in some circumstances, though that would be after having completed a full and complete assessment.94 Despite starting practice in Obstetrics and Gynaecology in 1983, Professor Permezel has never administered Oxytocin for a multigravida in the second stage of labour.95 Notwithstanding that, Professor Permezel said he would not criticise a clinician for doing so and it could be reasonable in some circumstances. However, he goes on to say:
“But I think absolutely everything has to be perfectly right and the - you know, as I’ve said and I’m sure has been discussed in this court, you know, there is, you know, this risk of catastrophic outcome, uterine rupture, and you just want to be sure that absolutely everything was in place. Sometimes doing that I would make sure that I was available, theatre was available, and that there was no other distraction, not some other baby with foetal distress that was needing my attention. I would - if I was going to do oxytocin I would just make sure that everything possible was optimal so that if I did get a catastrophic outcome I’m best placed to manage it. Even though that outcome would have been unlikely I need to make sure that all the resources of the hospital are available to deal with that outcome should it occur.” 96
[65] Professor Permezel also said “I can’t imagine ever anyone allowing Oxytocin to be put up on a multiparous patient while theatre was occupied and there wasn’t staff available to action an emergency, should that happen. Not staff and not theatre. Because you need the physical space as well as the staff”. 97
[66] The evidence of Professor Permezel of the risk associated with the use of Oxytocin in a multigravida patient included the following:
“The main risk associated with the use of oxytocin in a multigravida patient is the potential for the uterus to rupture. It is unusual for a multigravida patient to stop labouring in the second stage of labour. In this situation, there is a possibility that labour has arrested because of cephalo-pelvic disproportion. As the uterus contracts against an obstruction, the lower part of the uterus gets progressively thinner which in turn leads to a risk of uterine rupture. The administration of oxytocin to augment labour in the second stage in a multigravida will greatly increase the likelihood of uterine rupture and should only be initiated by an obstetrician after meticulous assessment of all prevailing circumstances.
With uterine rupture, the fetus may be extruded into the mother’s abdominal cavity through the rent in the uterine wall. Subsequent separation of the placenta leads to death of the fetus unless birth is rapidly accomplished. There is also a substantial risk of permanent disability (intellectual handicap &/or cerebral palsy) should an asphyxiated fetus survive. Haemorrhage from the uterine tear leads to the mother requiring a blood transfusion in around 80% of cases of uterine rupture. A hysterectomy will also be needed if the uterine damage is severe.
Amniotic Fluid Embolism (AFE) may also occur when there is a tear in a uterine vessel that allows amniotic fluid to enter the maternal bloodstream. AFE may lead to maternal death from cardio-respiratory failure &/or haemorrhage with coagulopathy.
There is also an increased risk of uterine rupture when oxytocin is used to augment contractions in a multigravida in the first stage of labour, but this is a lesser risk in comparison to when oxytocin is used to augment contractions in the second stage of labour. In the third stage of labour (after the baby has been delivered), it is normal practice to administer oxytocin to assist a patient to deliver the placenta and reduce bleeding. The Respondent has a standing order which permits midwives to administer oxytocin to women in the third stage of labour. Attached and marked “MP-7” is a copy of the Respondent’s Standing Orders Maternity Clinical Guideline.
Oxytocin may very uncommonly be administered to a multigravid woman in the second stage of labour, but this decision should be made by an obstetrician after meticulous assessment. Where labour has stalled and the obstetrician is not immediately available, correct management is to wait until the obstetrician is available. It is most unlikely that mother or fetus will come to harm whilst labour remains stalled and no oxytocin administered.
Uterine rupture in Australia is very uncommon. This is because labouring women are generally well managed in an environment of astute risk management by all staff involved in the care of the woman with adherence to accepted protocols and guidelines.” 98
[67] Having reviewed the patient notes, Professor Permezel gives the following evidence:
“From my review of the patient notes, the patient in question had been 7-8 centimetres dilated with a posterior position of the fetal occiput at 0730 hours on the day of birth. An epidural was requested at 0750 and inserted at 0905. The midwife found the patient to be fully dilated at 1000 hours, position was now occipito-posterior, the vaginal station +1. This is just adequate progress. Up to two hours to birth in second stage may be considered reasonable in a multigravida with an epidural in situ. If birth does not eventuate within this time period, normal practice would be for re-evaluation by the responsible obstetrician.” 99
[68] Consistent with this observation, Professor Permezel’s evidence is that there was no urgency to initiate a change in management with the patient. 100 Similarly, Dr Mooney states that she would not have rushed to assess the patient if the only concern was that she was having two contractions every ten minutes.101 Dr Mooney also when probed on cross-examination as to whether she had any immediate concern that there was some risk arising from the medication replied: “To be honest, whether or not there was a medical order to be taken, I believed that in a Multiparous patient at full dilation that was an incorrect clinical decision”.102
[69] Professor Permezel notes that maternal vital signs and the vaginal examination by the midwife at 10:00am did not reveal signs or features of obstructed labour. 103 However, Professor Permezel states:
“It is my firm view that the midwives were wrong to commence an oxytocin infusion without a medical order from an obstetrician because:
a) Although the risk of uterine rupture may not have been high in this particular case, the use of oxytocin increased the risk of a potentially a catastrophic outcome for both mother and baby.
b) Without medical awareness of the situation, there would be a lack of preparedness for urgent surgery – should that prove necessary. This is particularly so if the obstetric team is in theatre with another case. Almost always in such circumstances, the obstetric team would defer anything that might lead to an acute need for surgery until the current case was complete.
c) Commencing the infusion without meticulous assessment (e.g. another vaginal examination) further increased the risks to mother and baby.” 104
[70] It is convenient to deal with the competing evidence as to whether a further vaginal examination was necessary prior to commencing the Syntocinon.
[71] Professor Permezel explained in his first witness statement that he considered that commencing the administration of the Oxytocin without a further vaginal examination further increased the risks to mother and baby. In his second witness statement he explained that “...a wise clinician would have performed another assessment prior to commencing the Oxytocin”. 105
[72] Professor Permezel gave evidence that one reason for contractions decreasing is cephalo-pelvic disproportion and that a further vaginal examination at 11:25am could have revealed signs of impending obstructed labour which had not been apparent at 10.00am. 106 Under cross-examination Professor Permezel accepted that whilst he viewed another vaginal examination as “the wisest course” he wouldn’t have condemned a consultant for not having performed one.
[73] As to whether there should have been a further vaginal examination before administering Oxytocin, the evidence of Associate Professor Pettigrew was somewhat inconsistent. On cross-examination Associate Professor Pettigrew is asked to comment on the statement of Professor Permezel that “A further vaginal examination at 11.25am could have revealed signs of impending obstructed labour which had not been apparent at 10am”. This lead to the following exchange:
“But you would agree, wouldn’t you, that if you are going to do something as serious as administering oxytocin, you should do a vaginal examination before you do that, you should not just rely on one that occurred an hour and a half before? -In the situation where you are going to do that, yes, I agree that there should be - if I was doing it, I would want to be there and make an assessment myself, but I don’t think that that would be mandatory; it depends very much on how much involvement you have actually had with the delivery and whether you know there is going to be a problem with disproportion or not because that usually shows up much earlier. It’s pretty uncommon, particularly in a multigravida where there’s been that sort of progress, to get arrest.
What you are talking about there is a matter on which obstetricians might differ. Is that what you are saying? -Sure, yes. What I am saying, I suppose, is if the obstetrician involved in it, which is normally what would happen, then, yes, you would probably do a vaginal examination.
That is best practice, isn’t it? -Well, it would be because you, as an individual now taking over the management of this woman, really need to know what is happening at that particular point in time.
And one of the reasons why you need to know what’s happening at that particular time is that a vaginal examination at that point, just before you administer the oxytocin, could have revealed signs of impending obstructed labour which had not been apparent an hour and a half before? -It’s possible. To some extent, it depends on how reliable you think the vaginal examinations have been at the time.
If you haven’t conducted a vaginal examination yourself, that would be an even stronger reason not to just rely on what someone else had recorded? -Well, it depends on how reliable you think that particular person is. I mean, everybody has got varying degrees of skills in doing vaginal examinations. Even trainee obstetricians and even obstetricians themselves will often have a difference of opinion as to what’s happening as far as the position of the baby’s head in the pelvis is. There’s been more than one time when people have thought the baby is coming out the right way and they pull the baby out only to find out only to find out that it’s coming out the wrong way.
You are talking about different skills among obstetricians. You would not rely on a vaginal examination conducted by a midwife, would you, an hour and a half before? -If I was putting up the Syntocinon?
Yes? -No, I wouldn’t, because I’d be involved in it, yes, but as I said before - - -
“No, I wouldn’t”, did you say? -Sorry?
Did you say, “No, I wouldn’t”? -I would, yes.
You would? You would rely on the hour and a half before vaginal examination by a midwife? -As I said before, I don’t necessarily agree with what she did.
I put it to you that your evidence has been contradictory in this respect, Dr Pettigrew. On the one hand, you said if it was you, you would conduct a vaginal examination immediately before administering the Syntocinon or the oxytocin? -Sure.
Then you have just given evidence that, no, you would rely on an examination of the vagina conducted an hour and a half before by a midwife before you administered the oxytocin? -No, I didn’t quite say that. It depends on who the midwife was and how reliable I thought she was. But if I personally was getting involved in it, then I would want to do it myself.” 107
[74] The evidence of Associate Professor Pettigrew on this point was not consistent. In particular I note he says “if I was getting personally involved in it, then I would want to do it myself” 108 which is inconsistent with his other evidence that he would always be involved personally. Presumably it follows from that he would always conduct a further vaginal examination himself. However, he says he would accept a midwife’s examination depending on how reliable he thought she was. Associate Professor Pettigrew’s evidence on this point was inconsistent and unconvincing.
[75] In contrast, Professor Permezel was consistent on the further vaginal examination point. On cross-examination he said that he definitely would have performed a vaginal examination or if a registrar had rung him with similar circumstances to those in this case, he would have definitely instructed them to perform another vaginal examination and make absolutely sure there were not signs of obstruction. In the case under consideration his evidence is “… I do think that another vaginal examination was definitely the wisest course of action before taking this very, very unusual step of putting Oxytocin up in the second stage of labour”. 109
[76] Professor Permezel also states that from his understanding of the incident that the Applicant had options open to her to contact medical staff including ringing the operating theatre and obtaining verbal instructions from a member of the obstetric team or if the team in theatre were too busy in theatre, to contact the “second on registrar” who is rostered on from 0800-2200 every day to provide back-up obstetric support. 110
[77] Professor Permezel says that it is indisputably the role of the caring midwife to inform the medical staff if a multiparous woman has not birthed within 60 minutes of reaching full dilation and that there is no record that this occurred. Professor Permezel’s viewing of the patient notes led him to state that these notes are of a “cursory” nature and failed to indicate that the Applicant realised that she was making a very important and risky decision.
[78] In his first witness statement Professor Permezel explained that in his view “Although the risk of uterine rupture may not have been high in this particular case, the use of Oxytocin increased the risk of a potentially catastrophic outcome for both mother and baby”. 111 In his second witness statement he gave evidence that in his view “The risks may have been low in this case, but not “very” low”.112
[79] Under cross-examination Professor Permezel clarified that he considered that the risk of a uterine rupture occurring was a low risk and that “it was very unlikely or unlikely” to occur. However, it is important to note that Professor Permezel also explained that a consideration is not just whether the risk is low but also consider when a low risk becomes clinically important. His evidence on this point was as follows: “So if it’s a catastrophic outcome, or potentially, then a very low risk becomes clinically relevant. If it’s a less adverse outcome then a moderate risk becomes the level at which it becomes clinically relevant. So I think those statements are consistent in it is a low risk. It was very unlikely or unlikely but because it’s such a catastrophe it is clinically important and a - and relevant to clinical decision making”. 113
[80] He gave an example of designing a building: “the same would be if you’re designing a building with strappy concrete. You know, it’s very unlikely there’s going to be an earthquake in Melbourne and it’s all going to fall down but it’s such a catastrophic outcome it’s worth putting all that extra effort in, and that’s sort of a bit like this. It’s really unlikely but it’s so catastrophic you absolutely have to put precautions in place to minimise the incidence of things that are really bad”. 114 He also spoke of the importance for everyone to follow the rules. Noting that disasters on a labour ward can still happen but following the rules make it a much safer place.115
[81] In cross-examination Dr Mooney gave evidence that according to the partogram record at 10.00am, the presenting part of the baby, in this case the foetal head, had descended below the spines. Dr Mooney agreed that in light of the assessment recorded on the partogram it was very unlikely that there was cephalopelvic disproportion, which could cause a uterine rupture. 116 Associate Professor Pettigrew also gave evidence that “the descent of the baby’s head into the pelvis so that the baby’s head was now all in the pelvis” meant that it was highly unlikely to be cephalopelvic disproportion that could cause a uterine rupture”.117
[82] However, Professor Permezel, while noting that when the midwives conducted the vaginal inspection at 10:00am there were no signs of obstruction, makes the point that this does not mean that you know that the head is going to fit through. It is very much a clinical guess or guesstimate. 118
[83] Further, when it was put to Professor Permezel on cross-examination that it was unlikely that there could have been an obstructed labour, his reply was unequivocal: “Well, no, I think that’s the point is that having progressed so well to get to seven to eight [centimetres] by 7.30 and then having to - progressed well again to get fully dilated by 10:00, the contractions were obviously effective. You know, they were obviously doing something. They were obviously dilating the cervix very effectively so she should have birthed by 11:00 and certainly should have been progressing well and certainly shouldn’t have needed Oxytocin. If the contractions have gone off then that suggests to me cephalopelvic disproportion and therefore alarm bells ringing, red lights flashing”. 119
[84] In the report of Associate Professor Pettigrew 120 he stated that he considered that if Oxytocin “... is properly managed and regular assessments are made, the risks are very low”. He also gave evidence that “...I do not believe that there was a serious risk to the woman or her baby and that the treatment instituted would have been carried out by medical practitioners”.121
[85] Associate Professor Pettigrew gave evidence that in his view “if there had been a medical assessment at the time, taking into account the frequency and strength of contractions, the status of the fetus and the maternal condition, then a Syntocinon infusion would have been appropriate management”. 122 He also told the Commission that he would have instituted the same management had he been looking after the patient.123
[86] Under cross-examination Professor Pettigrew accepted that when Oxytocin is administered in the second stage of labour, as compared with the first or third stage, it is more dangerous. 124 However, somewhat inconsistent with that concession, Associate Professor Pettigrew claimed that administering Oxytocin in the second stage was not a very dangerous thing to do at all, if done properly. The exchange on cross-examination on this point was as follows:
“It was outside her scope of practice, but it wasn’t just that, it was taking a step that should only ever be taken by a senior obstetrician because it is a very dangerous thing to do, isn’t it, to administer oxytocin at the second stage? -No, it’s not a very dangerous thing to do at all, if you do it properly. It’s like everything else. It’s very dangerous to drive a car, too, but if you do it properly - - -
So “if you do it properly”, do you mean the qualified obstetrician doing it properly or do you mean a midwife doing it properly without consulting an obstetrician? -No, I mean even if the obstetrician makes the decision, it’s got to be run properly, and I would suspect that if - well, I’ll tell you what I would do. If I’m putting oxytocin up on someone in the second stage of labour, then I would be sitting there with her, watching what was going on.
You would be there? -I would.
Because there is a risk that she would have to go into theatre because of a ruptured uterus; is that right? -A very slight risk, very slight. I mean, yes, that’s always a risk, there’s a risk to any woman in labour having a ruptured uterus, but - - -” 125
[87] Later in his evidence, Associate Professor Pettigrew concedes that it was potentially dangerous, though considers it to be potentially dangerous even if he was doing it:
“So you agree with Prof Permezel that what she did was imprudent. Do you also agree with him that it is wrong and potentially dangerous for a midwife to initiate an infusion of oxytocin to a second stage multigravida? -I agree it’s wrong for a midwife to institute the - - -
Wrong and potentially dangerous? -Well, potentially dangerous because it’s potentially dangerous if I do it too.
So the potential danger makes it even less justifiable for a midwife to take it upon herself to administer this drug? -I don’t know whether it makes it any less or more. The fact is it shouldn’t have been done.
Do you agree with Prof Permezel that the administration of this drug should be a decision made by an obstetrician after a thorough and careful assessment of all the prevailing circumstances? -I’ve said that before.
You agree? -Yes.” 126
[88] Associate Professor Pettigrew also agreed that administering Syntocinon to a second stage woman in labour is a very rare event. 127 Associate Professor Pettigrew agreed it was rarely appropriate to administer Syntocinon, to a second stage patient, saying he would probably use it “once or twice a year”.128
[89] Further, Associate Professor Pettigrew gave evidence that “In this case, a diagnosis of brachysystole had been made, the progress and vaginal examination suggested that there was a minimal risk of obstructed labour and ruptured uterus, and the foetal monitoring suggested that the baby was not compromised”(emphasis added). 129
[90] Associate Professor Pettigrew agrees that he was aware of the law which prohibits midwives from administering a Schedule 4 poison without a doctors order absent some limited exceptions and agrees that it is a very serious matter for a midwife to do this. 130
[91] Associate Professor Pettigrew agrees with Professor Permezel’s evidence about uterine rupture and the potential effects on the foetus and mother. 131 He agrees that uterine rupture can very easily lead to and probably will lead to foetal death or some serious disability and less likely, but may lead to maternal death.132 He agrees if uterine rupture were to occur it would be a “disaster”.133
[92] On re-examination, Associate Professor Pettigrew is asked to clarify his evidence as to whether what the Applicant did was appropriate or inappropriate and whether it was prudent or imprudent, the exchange was as follows:
“You were asked a number of questions about whether the actions taken by Ms Born were appropriate or inappropriate. I want to give you an opportunity to clarify your evidence. Putting to one side that Ms Born didn’t have a medical order, so putting that to one side, in your opinion, based on your experience and qualifications and expertise, were the actions taken by Ms Born appropriate or inappropriate? -I think - well, it would be appropriate if I was looking after her, yes, but it’s not appropriate for the midwife.
If Ms Born had had a medical order, was the decision, based on the patient notes that you have reviewed, was the decision to administer oxytocin or Syntocinon at that point in time appropriate or inappropriate, putting to one side that there was not the medical order? -Yes, I would have thought it was an appropriate step to take.
Appropriate? -Appropriate step to take.
Thank you. Was it prudent or imprudent? -In the right - you’ve got to make a few assumptions here. If you are going to do that, for it to be safe, there’s got to be a medical person there who is supervising it and there’s got to be an experienced obstetrician, basically, be it the senior registrar or consultant, and then it would be - I don’t think it would be imprudent, I think it would be prudent.” 134
[93] Ultimately, the evidence of Associate Professor Pettigrew is that it was appropriate and/or prudent, but only if there is an experienced obstetrician there. However, this was not the case here. Professor Permezel is crystal clear that the use of Oxytocin was not prudent in the circumstances.
[94] Similarly, Professor Permezel’s evidence is that the use of Oxytocin may have been prudent if the medical team had fully assessed the patient and had assessed the risk of rupture was extremely unlikely and also considered the availability of contingencies for emergency care should that have become necessary. 135 Professor Permezel states that the risk of emergency need for theatre is unquestionably much higher with Oxytocin in the second stage of a multiparous patient.136 Further, he says “If this patient’s uterus had ruptured while the doctors where still operating in theatre, there would have been nowhere to take her and no consultant availability to perform the emergency surgery”.137 Dr Mooney’s evidence on this point was consistent with that of Professor Permezel:
“If a multigravida patient’s labour has stalled and there is no obstruction, Oxytocin can be considered, but a senior clinician should make the decision, and would be present to examine the patient and monitor her closely. The general rule not to administer Oxytocin to a multigravida patient in full dilation would be broken as an exercise of senior judgment.
It would not be up to a Registrar to make that decision. If I were considering administering Oxytocin to a fully dilated multigravida patient, I would absolutely ask the Consultant if this was a necessary and appropriate course of action. The Consultant would be the one to examine the patient and order the medication.”
[95] It is important to note that Associate Professor Pettigrew gave evidence that counsel for the Respondent submitted strayed outside of the scope of the brief he was provided to give expert evidence. For example, in his evidence in chief, he made the following statement:
“Ms Born has been counselled regarding this lapse, but the ANUM has not been mentioned at all and it was she who countersigned the Syntocinon order, knowing that there was no medical order for it and that according to the implication in Ms Born’s statement, medical staff would have been hard to contact.” 138
[96] It was put to Associate Professor Pettigrew that this was in effect advocating on behalf of the Applicant, that she should not be the only one deemed responsible. He agrees that there should be some responsibility shared by the ANUM. He then concedes he was not asked to give an opinion about what responsibility the ANUM should have in relation to the incident. 139 Later in his evidence, Associate Professor Pettigrew when acknowledging the administration of Oxytocin is outside the Applicants scope of practice states “I will acknowledge that. But I don’t think it’s a hanging offence”.140 I agree with counsel for the Respondent that the propensity of Associate Professor Pettigrew to engage in this kind of advocacy somewhat undermined his independence as an expert witness. As alluded to above, a good deal of Professor Pettigrew’s evidence was inconsistent and he was sometimes evasive when answering questions. In contrast, I did not have such concerns about the evidence of Professor Permezel. His evidence was clear, cogent and authoritative. Ultimately, there was significant overlap and not many matters on which the evidence of Professor Permezel and Associate Professor Pettigrew was in conflict. However, to the extent that their evidence is in conflict, I prefer the evidence of Professor Permezel.
[97] Considering the evidence overall, counsel for the Applicant accepts that “…the evidence establishes that when Oxytocin is administered in the second stage of labour there is an increased risk to the patient and baby and that a uterine rupture is a very serious outcome”. However, it is submitted that on the evidence before the Commission, the Commission should find that “a uterine rupture was very unlikely to occur in this case and likelihood is the key consideration when assessing the level of risk and the gravity of the conduct”(emphasis added). 141 Counsel for the Applicant also urges me to find that (other than the failure to obtain the medical order) the administration of the drug by the Applicant was not inappropriate management of the patients labour and further that conducting a vaginal examination at 11.25am was not mandatory and it was very unlikely there was cephalopelvic disproportion based on the assessment of the patient.142
[98] The Respondent submits that it was inappropriate, wrong and clinically unsound for the Applicant to administer the drug in order to augment labour to free up the patients bed and for no other clinically justified reason. The Applicant should not have taken this rare and dangerous step in circumstances where she could have easily obtained an order by contacting a doctor. Further, the drug was administered without an obstetrician present to monitor which was clinically required; the administration of the drug should have been a decision made by an obstetrician after a thorough assessment. The failure of the Applicant to conduct a contemporaneous vaginal examination increased the risks to mother and baby. The risk of the catastrophic outcome of uterine rupture was low but not very unlikely and it was by good fortune and not good management that mother and baby did not suffer such an outcome and administration on Syntocinon. Finally, the administration of Oxytocin by the Applicant without a medical order amounts to an offence pursuant to subsection 47(3) of the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) and sub-section 129(2) of the Drugs, Poisons and Controlled Substances Act 1981(Vic). 143
Evidence of Helen Cull and Alison Patrick
[99] Ms Cull, Human Resources Manager in Health Services for the Respondent also gave evidence. She gave evidence as to the steps she took to investigate the alleged misconduct after she became aware of the incident of 13 April. The acting nurse unit manager at the time told her about the incident and told her to expect to be contacted by a Kassandra Russell, the clinical educator coordinator as a student midwife had gone to Ms Russell with concerns about the incident. After a discussion with Ms Patrick on 15 April, Ms Cull sent a letter to the Applicant notifying her that the incident may involve serious misconduct and invited the Applicant to a meeting. The meeting was scheduled for 21 April but ultimately took place on 22 April. On 26 April, the next business day following the meeting with the Applicant, Ms Cull sent a letter advising the Applicant she was not required to attend for duty and asked for further details about the incident.
[100] Under cross-examination counsel for the Applicant put to Ms Cull that for the period up until the Applicant was stood down, she did not have a concern about whether Ms Born could safely perform her role. Ms Cull responded that given the Applicant had been put on notice about the incident she did not expect it to occur in the days before they met. 144
[101] Ms Cull’s evidence was that the Applicant said at the meeting on 22 April that following the incident she had checked the guidelines and now realised the seriousness of her actions and that she agreed that she had put the patient at risk. 145
[102] The second disciplinary meeting occurred on 5 May. At that meeting Ms Cull says that the Applicant said she did not have a good reason to administer the Oxytocin other than she was a bit rushed to deliver the baby. She realised the outcome could have been very serious for the patient, including that the patient could have died. She also said that she was unaware of the protocol for administering Oxytocin, even though she taught student midwives. She also assumed responsibility for the incident. 146
[103] Ms Cull states that the Respondent did consider the Applicant’s age and years of experience in deciding to terminate her employment. But that “these factors supported the decision to terminate as the Respondent would expect such a senior midwife to have a strong understanding of midwifery scope of practice and the Respondent’s policies and procedures”. 147 Further, she states: “It is appalling that a senior midwife, who is training students, would not realise that she was acting outside of her scope of practice and would not know appropriate protocol. This is especially so where it is so clear to a student that the conduct is inappropriate that she goes to her supervisor and is distressed at what has occurred”.148
[104] Ms Cull confirmed on cross-examination that the Respondent dismissed Ms Ooi as it had come to the view that she had acted in an unacceptable manner on 13 April when she played a role in the administration of the Oxytocin with the Applicant. 149 Further, Ms Cull agreed to the following:
“And the Mercy (Respondent) came to the view that as an ANUM she should have acted differently? -That’s correct.
And the issue was that she co-signed the label and drug order or I should say she signed the label and order chart without a medical order and this was just unacceptable? -That’s correct.” 150
[105] Ms Patrick is the Executive Director of Nursing and Midwifery for Mercy Health Services. Ms Patrick explained that she became aware of the incident because the student midwife was distressed about what had occurred and went to the education coordinator who in turn contacted the nurse unit manager, who in turn contacted her. 151 Ms Patrick considered the allegation to be extremely serious. She would never expect a midwife to initiate or deliver Oxytocin in these circumstances in the absence of doctors orders.152
[106] Ms Patrick was at the meeting with Ms Cull and the Applicant on 22 April and says at that stage a decision hadn’t been made about whether the allegation was substantiated or not. Ms Patrick says that “On the surface the incident seemed very odd, but there is always the potential for mitigating factors. I thought it was possible that maybe a Consultant Obstetrician had walked through the Birth Suite and ordered the medication and then not written the order or there was some other plausible explanation for why the medication appeared to have been given without a medical order”. 153
[107] Ms Patrick also said that the Applicant said at the first disciplinary meeting she was not aware of policies relating to the administration of Oxytocin or that it is rarely given to a multigravida woman in the second stage of labour. 154
[108] Ms Patrick also said at the meeting on 5 May that the Applicant said that she had completed over 20 hours of continuing professional development since the first meeting and now knew what she did was terribly wrong. 155
[109] Ms Patrick said what the Applicant did was well outside her scope of practice, dangerous to the patient, unsafe and completely unjustified. 156 Ms Patrick’s view was:
“This was not an inadvertent mistake. From my perspective, a midwife with over 30 years of experience, who is training student midwives is someone I would expect to be more skilled than the average midwife and to be familiar with all relevant policies and protocols. For a midwife of the Applicant’s experience to deliberately give this medication to this patient without doctors order or review in the second stage of labour is a fundamental and serious dereliction of duty.” 157
[110] Ms Patrick thought termination was appropriate as there was no satisfactory explanation for the conduct, there was no emergency and no attempt made to contact medical staff.
[111] Further, the evidence of Ms Patrick is that there was no evidence of a staffing concern on 13 April according to the shift report or any other evidence of a staffing concern. 158 Ms Patrick was shown the bed report, Exhibit R5. She confirmed that what it showed was that one permanent staff member was rostered over normal staffing levels on that shift.159 Ms Patrick was cross-examined about the bed report and whether there could be errors with it because of the time of reporting or other factors.160 Ms Patrick was unshaken on her evidence on the bed report.
[112] Ms Patrick was asked about the notes that the Applicant claims she made at 9:30am and 11:00am which were not part of the Labour and Birth Continuation record. Her evidence is that the Applicant had never referred to these notes in the past. 161
[113] Ms Patrick was also probed on cross-examination about the fact that the Applicant continued to work up until the first disciplinary meeting. Her response was that she thought she needed to do the investigation first and could not make a serious judgement about someone’s clinical decision making without giving them the benefit of having a conversation as that would not be fair. 162 She also indicated she followed the advice of Human Resources.163 Further, Ms Patrick confirmed that the three shifts the Applicant worked between the incident and the meeting when she was stood down were in the Emergency Department, not in the birthing suite. Her understanding was that they discussed what her planned shifts would be up until the meeting. Ms Patrick said “If she wasn’t working in the birth suite there would have been no chance of a recurrence of this issue in that period”.164
Response of the Applicant to the allegations
[114] The Applicant never denied the conduct during the disciplinary investigation. The Applicant was apologetic at the first meeting held between her and the Respondent during the disciplinary investigation. 165
[115] In her evidence in chief, the Applicant said she doesn’t know why she didn’t discuss Syntocinon administration with a doctor before administering it. 166 The Applicant agreed that when it was put to her in the disciplinary meeting that “oxytocin is never without review” she replied “I realise that now”.167 However the Applicant then accepted that she knew all along there should have been a review of any decision to administer.168
[116] I note the Applicant was asked to clarify on re-examination if there is a difference between a review and an order or if they the same. The Applicant replies “no” and goes on to explain why, however, it is clear from her explanation that her reference to a “review” still involves a doctor. 169
[117] When the Applicant is asked by me if she recalls saying at the disciplinary meeting “I was not aware of the protocol” she replied “I must have, if it’s down, I don’t know” and “I don’t recall, I was quite stressed at the time”. 170
[118] It was clear that the Applicant accepted during the hearing she was aware at the time she administered the Syntocinon that it is a Schedule 4 medication according to the drugs and poisons regulations and needs the order of a medical officer prior to administration. 171 She states that she would never give the medication again without first consulting a member of medical staff and obtaining an order for the medication.172
[119] The Applicants evidence in chief on her perspective as to the seriousness of what had occurred included the following:
“I understand a ruptured uterus following obstructed labour is a potential consequence in the event that a labour is inappropriately augmented with Syntocinon. However, ruptured uterus is a rare complication. I have seen two ruptured uteruses in my 32 years working as a midwife. I am aware that the risk of a ruptured uterus is higher in multigravida women. Midwives are trained in assessing women for signs of obstructed labour which include excessive contractions, elevated heart rate of the mother and/or the baby and even increase in temperature. In fact if a midwife suspected that a labour is obstructed, it would be the midwife who would alert a medical officer and the medical officer would attend to confirm this or otherwise.
At the time that I commenced the Syntocinon infusion, there were no signs of obstructed labour. Further, in accordance with the protocol, I commenced the infusion at the lowest possible rate which would be unlikely to cause an obstructed labour. I increased the Syntocinon after 30 minutes in accordance with the protocols. The increased rate of the infusion was still a relatively low rate. I increased the Syntocinon infusion after advising the medical officer that it had been commenced and prior to any other medical officers raising concerns about the infusion.” 173
[120] The Applicant also states that while the medication should not have been administered without a medical order, it is her view that she did not place the patient at risk of serious harm. 174 Under cross-examination, the Applicant confirmed her understanding that a side effect of Syntocinon can be a ruptured uterus which in turn can lead to foetal, maternal death or injury and that makes what she did on 13 April very serious.175 She also agreed that the use of Oxytocin increased the risk of a potentially catastrophic outcome for both mother and baby.176
[121] It was put to the Applicant on cross-examination that these concessions were inconsistent with her statement that there was “no risk” in commencing the infusion. 177 Her response was to say that “You have to assess the patient well and if you don’t know how to use it, yes, you can rupture anybody’s uterus”.178
[122] The Applicant also made claims that “there is not always adequate staffing levels to provide care...” and that she felt “under pressure” to augment the patients labour. If there was more staff and better facilities this would not have been a concern. If a medical officer was present and available she would have asked the medical officer prior to giving the medication. 179 At the hearing she was asked about the file note at Annexure HC-4 to the Witness Statement of Helen Cull where it is recorded that at the disciplinary meeting she said “I can’t say that I had a good reason other than a bit rushed for delivery”. The Applicant at first says that she didn’t say that180 however she agrees that she said to them she felt under pressure to augment the patients labour so that the patient would give birth and the room could be made available for other patients in established labour.181 She agrees that this is a clinically unsound reason182 and on re-examination she maintained it was clinically unsound.183
[123] The Applicant confirmed that she was aware that the medical staff were in theatre at the time she administered the Oxytocin. 184 However, she went ahead with the infusion because she knew the doctor would be in the area soon afterwards.185 The following exchange with the Applicant on cross-examination reflects the inconsistency in the Applicant’s evidence of the level of risk:
“It was possible though that the theatre was already occupied so that had this patient suffered a ruptured uterus that she would not immediately have been able to be dealt with in theatre. Was that your understanding? -Yes, that is my understanding but it’s my understanding that a ruptured uterus doesn’t happen daily either.
So if it happened - - -? -If.
She would have – yes, I said, “if it had happened”? -If.
Yes, I’m very clear about “if”, because it didn’t happen, did it? -No.
No, and that makes it all - - -? -I have seen two ruptured uteruses in my 32 years.
Yes? -One was on a scarred uterus and one was with the force of delivery where the uterus ruptured.
Yes, and it’s a disastrous thing to occur, isn’t it? -And the Syntocinon (indistinct) I’ve dealt with almost on a daily basis, at least one or two patients - - -
Please answer my question? -Daily basis.
Please answer my question, Ms Born? -Yes.
It is a disastrous thing for a uterus to rupture, isn’t it? -Of course, yes.
Yes. It can result in the death of the baby or the mother, or both? -Yes.
Is that possible? -Yes.
Yes. Now when something is as serious as that consequence - - -? -Yes.
That there is a risk of that consequence occurring, you should make sure that there is an obstetrician available to deal with that situation - - -? -Mm.
And that there is availability in theatre for that situation to be dealt with, namely the ruptured uterus, shouldn’t there? -Well, the mother’s uterus was intact before I put the Syntocinon up and the amount of Syntocinon I put up was with caution and my knowledge with – and expertise to know how much I should give so that there would be no chance of her rupturing the uterus.
No chance? -No. I made sure that there would not be the chance.
So - - -? -There was no indication that the labour was obstructed.
So I put it to you that you’re not recognising the seriousness of this risk? -I do.
It may be – you say, no chance. The evidence from the experts is that there is a risk, a low risk. Do you accept that there is a low risk of the rupture of the uterus as a result of you administering the oxytocin - - -? -Yes, I do - - -
To a second stage multigravida? -Accept there’s a low risk.
You do accept there’s low risk? -Yes.
Well, that’s inconsistent with your evidence just before to the Commission that there was no chance of a ruptured uterus. Do you understand that you are contradicting yourself there, Ms Born? -Is that a contradiction? I have assessed the patient for the risk factors and I did not see, and the ANUM did not see any risk factors.” 186
Effect on the Applicant of the termination
[124] The Applicant submits the following:
“I have not been able to secure other employment as a registered midwife since the termination of my employment with Mercy Health. In the beginning of July 2016 I started working as a nurse for an elderly person with dementia in the person’s home. I have worked two shifts a week. I do not know if this work will be ongoing or if the person will need to go into residential care.” 187
[125] It is an agreed fact that the Applicant has taken steps to mitigate her loss. It is also an agreed fact that the Applicant chose not to apply for any permanent work as a midwife following her termination, and had not done so at the time her application was heard. 188
Evidence of Megennis
[126] Mr Megennis gave evidence in the matter. However, counsel for the Applicant made clear in closing submissions that the Applicant did not rely on it. 189
The Australian Health Practitioner and Regulation Agency (AHPRA) investigation
[127] The Applicant tendered a second witness statement 190 which set out the decision of The Nursing and Midwifery Board of Australia (NMBA) based on an investigation conducted by AHPRA. The Board issued the Applicant with a caution which the Applicant submits is the lowest level disciplinary outcome available.191 The Respondent submits that this factor is irrelevant as the evidence is hearsay. Further that there is no evidence as to what information was provided to AHPRA or the Board on which the Board based its conclusion.192 The decision of the Board and the extent to which it should be considered in the decision is dealt with later in the decision.
Findings of fact
The involvement of the ANUM Ooi - Did Ooi know that Oxytocin was to be administered to the patient without first obtaining a medical order? Did Ooi endorse and encourage the conduct of the Applicant?
[128] The Applicant submits that on the evidence I should find that Ms Ooi knew that Oxytocin was to be administered to the patient without first obtaining a medical order (emphasis added). 193 The significance of this finding from the Applicant’s perspective relates to the leadership role of Ms Ooi. She was in charge of the midwives in her department and the clinical running of the department (including making sure that the Respondent’s policies and procedures are being followed).194 The Applicant submits that, if it is established that Ms Ooi endorsed and encouraged the medication being administered it is a significant mitigating factor that diminishes the gravity of the Applicants misconduct (emphasis added). This submission was repeated at the final hearing.195
[129] It seems clear on the evidence that Ms Ooi approached the Applicant and asked why was the labour taking so long. The Applicant gives clear evidence on this and Ms Ooi agrees that she probably said that. 196
[130] The Applicant gave evidence that she told Ms Ooi that the patient’s contractions had eased off and that she was having two contractions in 10 minutes. The Applicant also gave evidence that she told Ms Ooi that it was her view that the patient’s contractions had eased off following the administration of the epidural and she said that she thought that the patient needed Oxytocin to augment the labour. 197 Ms Ooi concedes that each of these comments were made to her by the Applicant.198
[131] The Applicant gave evidence that she then reviewed the record of contractions and foetal heart rate on the CTG trace with Ms Ooi and the Applicant showed Ms Ooi that the patient’s observations including her heart rate and temperature were normal. 199 This evidence was accepted by Ms Ooi.200
[132] The Applicant gave evidence that after reviewing the patient’s observations Ms Ooi told the Applicant that she agreed that patient’s labour needed to be augmented. 201 This account was also accepted by Ms Ooi.202 While Ms Ooi says that the Applicant already had the medication with her at the nurses station I think that this is unlikely to be the case. As I have accepted that it was Ms Ooi who approached the Applicant, it would seem unlikely that the Applicant already had the drug and solution in her hand.
[133] The Applicant says that she and Ms Ooi signed the intravenous fluid orders record and according to the record this was done at 1120 hours. 203 During the hearing Ms Ooi accepted that 11:20 was “probably so”.204 The drug chart was tendered to the Commission as part of the patient notes and indeed it records it was “1120”.205
[134] Under cross-examination, Ms Ooi at first accepted that the drug chart she signed was in the form that it was tendered as part of the patient notes, 206 with the only difference being that when she signed it Dr Medwin had not yet signed the document.207 Immediately after, she is asked about the start admin time which she agrees says 1120 but says “there was no time written, there was no doctors signature”. She further states she was sure there was no time written.208
[135] Counsel for the Applicant claims this exchange shows that Ms Ooi was inconsistent in her evidence on this point. However, it has to be borne in mind that she responds to a general question about the form being the same, but when the detail is focussed in on, she is adamant the time was not written there. I do not consider much can be made of the inconsistency in that context. I agree with counsel for the Respondent it is simply a case of Ms Ooi trying to recall what was on the form she signed many months before. Counsel for the Respondent makes the point that there is no positive statement from the Applicant that Ms Ooi signed that fluid order record and at that point, 1120 was on the record. 209 However, counsel for the Applicant pointed out that this issue only came up on cross-examination after the Applicant had closed its case, and Ms Ooi was giving evidence under an Order to Attend and had not provided a statement.210 I agree that this is a relevant consideration and no inference should be drawn from the failure of the Applicant to make a positive statement on the issue.
[136] Counsel for the Applicant urges me to prefer the evidence of the Applicant over Ms Ooi in light of the inconsistencies in Ms Ooi’s evidence. I agree Ms Ooi is inconsistent in her evidence on some matters but not to an extent where I prefer the Applicant’s evidence on all disputed evidence between the Applicant and Ms Ooi. Indeed there are many inconsistencies in the Applicant’s evidence. However, I prefer the evidence of the Applicant on this matter. It seems most unlikely that the time was left blank on the drug chart at the time of signing.
[137] Irrespective, I note this finding is not determinative of the key factual dispute, that is whether Ms Ooi knew the Oxytocin was to be administered without obtaining a medical order.
[138] As outlined above, the Applicant’s evidence is that Ms Ooi directed her to inform the doctors about the infusion when they returned from theatre and that Ms Ooi was aware that she was going to commence administering the Oxytocin and then have the drug chart signed. 211
[139] Ms Ooi gave evidence at the hearing that the Applicant said to her that she would notify the doctor when the medication had been checked and that she assumed that the Applicant would ring the doctor. 212 Further, that she said to the Applicant “can you notify the doctor before you put up the medication?”213
[140] During the hearing it emerged that Ms Ooi included in her unfair dismissal application that the dismissal was unfair because, the Applicant had told her that she had already spoken to the doctor and had a written and signed prescription. 214 The Applicant submits that this is inconsistent with the account above. The Respondent urges me to understand this statement, made in the unfair dismissal application as Ms Ooi referring to the signed document by Mr Medwin, that was signed after the event. It is not that Ms Ooi knew there was a doctors order.215 I do not agree with the Respondent that this is the way in which to understand this part of the evidence. In particular, this is because there is also the account given by Ms Ooi via a signed statement at the time, which says “assuming the doctors were informed by telephone, I then proceeded to check the oxytocics…216 This is inconsistent with her evidence that she directed the Applicant to call the doctor before administering the drug. I prefer the evidence of the Applicant on this point.
[141] Overall, the evidence suggests that on balance Ms Ooi knew that there was no medical order at the time that she was checking the IV and drug with the Applicant. What is less clear is whether she knew that there was no medical order when the drug was administered. There is insufficient evidence to establish that she knew that to be so. The evidence supports a finding that Ms Ooi assumed that the Applicant would ring the doctor before she put up the Syntocinon but had no idea if she did. What Ms Ooi did do is she signed the label and order chart without a medical order. Ms Cull confirmed that this formed the basis of the reason for Ms Ooi’s termination as she should not have done that, it was unacceptable. To this extent Ms Ooi was a party to the misconduct. 217 Ms Ooi facilitated the administration of the drug, knowing that there was no medical order at the time she was signing the drug chart. While the Applicant initiated the idea, Ms Ooi certainly assisted in the process and endorsed the action.
[142] However, the evidence does not support a finding that Ms Ooi encouraged the Applicant to administer the Syntocinon. Ms Ooi certainly endorsed the decision to take, what the evidence of the medical officers in this case has clearly established is a rare and unusual step, of administering Syntocinon to a multigravida woman in the second stage of labour. Ms Ooi was the senior nurse and the nurse in charge of the Applicant. However, there is insufficient evidence that Ms Ooi encouraged the Applicant to do what she did. The role of Ms Ooi is a matter to be taken into account in considering the gravity of the Applicant’s misconduct.
Was a uterine rupture very unlikely to occur in this case and was the administration of Oxytocin appropriate management of the labour except for the fact that there was no medical order for the drug at the time it was initiated?
[143] Counsel for both sides made the point that there was substantial overlap in the evidence of Associate Professor Pettigrew and Professor Permezel on this point. Professor Permezel said it was unlikely and Associate Professor Pettigrew said it was very unlikely. I agree with counsel for the Applicant that a finding that uterine rupture was unlikely or perhaps very unlikely can be made without rejecting the evidence of either of Associate Professor Pettigrew or Professor Permezel. 218 Indeed counsel for the Respondent concedes it was unlikely.219
[144] However, the Applicant also accepts that the evidence establishes that when Oxytocin is administered in the second stage of labour there is an increased risk to the patient and baby and that a uterine rupture is a very serious outcome. 220 The evidence is clear that a uterine rupture if it occurs is catastrophic with potential for serious injury or death to the mother and baby. The level of risk has to be seen in that context. This point is made clearly by Professor Permezel where he refers to the notion of clinical relevance; while it was very unlikely or unlikely, if it did occur it is such a catastrophe it is clinically important (see paragraph [79]).
[145] This leads to a consideration of the question of whether administration of Oxytocin was appropriate management of the patient, leaving aside the fact that there was no medical order given. Counsel for the Applicant urges me to find the answer to this question is yes. In urging me to reach that conclusion, the Applicant focuses on the data in evidence relating to the patient during the time that the medication was administered as set out above. However, a fundamental problem with the Applicants submissions on this point is that it relies on a characterisation of the evidence which either ignores or overlooks that both Associate Professor Pettigrew and Professor Permezel gave evidence about the importance of the need for a medical assessment prior to the decision to administer the Syntocinon. Associate Professor Pettigrew’s evidence that in his view the infusion would have been appropriate management starts with the observation “if there had been a medical assessment at the time…”. 221 Professor Permezel refers to the use of Oxytocin being prudent “if the medical team had fully assessed the patient…”.222 Indeed, Associate Professor Pettigrew said he would be there to monitor the whole situation if he was doing it.223 In that context, it is a distortion to approach the question by seeking to isolate it from the agreed fact that there was no medical order. The fact there was no medical order means in this case that there was also no medical assessment, by a medical officer.
[146] Notwithstanding that point, it is important to consider the appropriateness or prudence or otherwise of the Applicants actions. The starting point for that consideration is establishing the motivation of the Applicant to do what she did. The Applicant was somewhat inconsistent in her evidence on this. In her statement, the Applicant says she does not know why she did not wait to discuss the Syntocinon infusion with a doctor prior to administering it. 224 However, the Applicant also makes reference to feeling under pressure to augment the birth to make the room available. There is also the Applicants claim that there are not always adequate staffing levels to provide care. She claims that if there were more staff and better facilities this would not have been a concern.225 However, Ms Patricks evidence, in reference to the bed report was that it appears that there was actually more staff than the ratio requires on the day. The evidence of Mr Megennis regarding staff ratios and related matters is not relied on by the Applicant. This leaves me with the persuasive evidence of Ms Patrick and the bed report, to weigh against the evidence of the Applicant that she believed there were only seven staff rostered on the day. I prefer the evidence of Ms Patrick on this matter. I am not satisfied that the evidence supports a finding of any staff shortage on the day in question. Nor is there any evidence that the state of the facilities was an issue.
[147] The Applicant also claims that if there was a medical officer on the ward she would have asked the medical officer prior to giving the medication. But the evidence is clear that medical practitioners could have easily been contacted. The agreed fact is that the Applicant did not make any attempts to contact a doctor and obtain an order for the medication before administering it to the patient. 226
[148] Having considered all of the evidence, I am not satisfied that there was any reason related to staffing or facilities that could cause the Applicant to be under pressure to augment the labour to free up the patients bed. The extent to which the Applicant could have felt some pressure comes down the conversation with Ms Ooi, where Ms Ooi asks why is the labour taking so long. The asking of this question, without something more, could hardly be said to be exerting pressure on the Applicant.
[149] Despite the lack of evidence of staff shortages or poor facilities, the Applicant’s evidence is that she felt under pressure to free up the patients bed. If this was the reason that the Applicant made the decision it was a clinically unsound and wrong decision. The Applicant agreed during the hearing it was clinically unsound. 227
[150] The evidence clearly established that administering Oxytocin to a multigravida patient in the second stage of labour is a rare event. Professor Permezel, whose evidence I preferred, said that he had never done it. Associate Professor Pettigrew claimed that he did so once or twice a year, and it was a judgment that he would make as an obstetrician. 228Associate Professor Pettigrew agreed it was a very rare event.229 The evidence of Dr Mooney is that in the circumstances, had she been asked to approve it she would have refused.
[151] Professor Permezel’s evidence is that there was no urgency to initiate a change in management. 230 Further, Professor Permezel states “…the contractions were obviously effective. You know, they were obviously doing something. They were obviously dilating the cervix very effectively so she should have birthed by 11 and certainly should have been progressing well and certainly shouldn’t have needed oxytocin”.231
[152] The evidence clearly supports a finding that there was no clinical reason for the intervention. The Applicant’s decision to do so was clinically unsound and inappropriate management of the patient.
[153] Professor Permezel accepts that the use of Oxytocin may have been prudent if the medical team had fully assessed the patient and assessed the risk of uterine rupture was unlikely and also considered the availability of contingencies for emergency care should that have become necessary. It is clear that there was no examination of the patient by an obstetrician before the Syntocinon was administered, and this should have been done. Professor Permezel concedes that in some instances what the Applicant did could be the correct decision. 232 However, Professor Permezel said he “couldn’t imagine” the use of Oxytocin on a multiparous patient while theatre was occupied and there wasn’t staff available to action an emergency.233
[154] The evidence is clear that an experienced obstetrician should have been present to monitor the condition of the patient and baby. Associate Professor Pettigrew says that if he was putting Oxytocin up, he would be “sitting there with her” and would monitor the situation. 234 That did not occur in this case.
[155] Professor Permezel was clear that conducting a further vaginal examination prior to administering the Oxytocin was the wisest course prior to taking this very, very unusual step. 235 His concession that he would not “condemn a consultant” for not doing one does not alter that evidence. As mentioned earlier, Associate Professor Pettigrew’s evidence on this issue was inconsistent and unconvincing. I prefer the evidence of Professor Permezel on this point. The evidence is also clear that the Applicant did not herself conduct a vaginal examination at any time. She relied on the examination conducted at 10.00am by another midwife and the student midwife. A further vaginal examination should have been conducted prior to the administration of the Oxytocin. It should have been conducted by an obstetrician and in the absence of that, the Applicant should have conducted one. She did not. I am satisfied her failure to do so further increased the risk for mother and baby.236
[156] The need for a further vaginal examination is associated with assessing the risk of obstructed labour. I note that I agree with the Applicant that it would appear that the balance of the evidence favours a finding that the risk of an obstructed labour in this case was low or unlikely. Professor Permezel notes that when the vaginal inspection was carried out at 10:00am there were no signs of obstruction. However, one has to bear in mind this is with the benefit of hindsight. It is an agreed fact that the baby was delivered without further intervention. Therefore, it would appear from the outcome, no obstruction.
[157] However, it is important to consider what was appropriate and prudent to do at the time to manage the risk. On this point, the evidence of Professor Permezel is salient. He points out that while there were no signs of obstruction at 10:00am, that doesn’t mean you know that the head is going to fit through. 237 Further, he makes the point referred to in paragraph [83] that “If the contractions had gone off then that suggests to me cephalopelvic disproportion (obstruction) and therefore alarm bells ringing, red lights flashing”.238
[158] The Respondent made the following submission during closing submissions which succinctly summed up the reason why what the Applicant did was inappropriate management:
“It is inappropriate management because she - it’s not her call, in essence, and it is all very well to say ex post facto the benefit of hindsight, that it’s unlikely that there was a cephalopelvic disproportion, so the head was too big. It’s all very well to say that on the basis of notes and benefit of hindsight when experienced obstetricians look at this, but the risk needs to be evaluated at the time, and proper procedures need to occur at the time. That includes having a doctor assess, a senior doctor assess and make a call to administer what is a very rare and - or administer a drug in what is a very rare situation; a multigravida patient in the second stage of labour.” 239
[159] I agree with that submission.
[160] Having considered all of the factors above, it is abundantly clear that what the Applicant did in administering the Syntocinon was inappropriate and wrong, irrespective of the admitted failure to obtain a medical order. The Applicant was not under pressure, there was not a staff shortage. There was no clinically sound reason to do what she did, there was no examination by a medical officer, there was no further vaginal examination by a medical officer prior to the administration of the Oxytocin; the Applicant herself did not conduct a vaginal examination; there was no monitoring by an obstetrician and there was no preparation for an emergency situation. The risks of obstruction and uterine rupture were low but the risk is clinically relevant. Uterine rupture should it occur is likely to be a catastrophe. The Applicant acted wholly outside her scope of practice as a midwife. She breached the procedural guidelines of the hospital and acted contrary to the drugs legislation. 240 The actions of the Applicant increased the risk of serious injury or worse to the patient and baby.
[161] The seriousness of what the Applicant did was conceded by her 241 and was conceded by Associate Professor Pettigrew.242 The evidence of the seriousness and the danger of the conduct presented by Professor Permezel was clear and compelling. The Applicant admits to misconduct but submits it was not serious misconduct. However, I am satisfied on the evidence it was in fact serious and dangerous conduct that involved a risk to the patient and baby.
[162] Having considered the evidence, I am satisfied that the Applicant engaged in serious misconduct. The action taken by the Applicant caused serious risk to the health and safety of a person.
Did the Applicant prevent Dr Medwin entering?
[163] Dr Medwin presented as an honest and forthright witness. However, even accepting the evidence of Dr Medwin does not allow a finding that the Applicant actually prevented him from entering the patient’s room. The Applicant concedes that she was in effect saying to the doctor that he shouldn’t examine the patient as he had done it already. However, this falls short of a denial of entry. Dr Medwin felt uncomfortable about asserting his right to enter. He did not attempt to walk past the Applicant. It is clear the Applicant thought the doctor shouldn’t examine the patient, but she did not prevent him from doing so. I cannot be satisfied on the evidence that the Applicant prevented the doctor from entering the patient’s room.
Findings on the Applicant and her level of insight
[164] It is an agreed fact that the Applicant was apologetic for her actions at the first disciplinary meeting. However, the evidence from Ms Cull and Ms Patrick as to what she said at that meeting and the subsequent meeting show that she claimed to be unaware of the protocol. However, she confirmed during the hearing that she was in fact aware at the time she administered the Syntocinon that it is a Schedule 4 medication according to the drugs and poisons regulations and needs the order of a medical officer prior to administration prior to administration. 243 This suggests that the Applicant was not honest at the disciplinary meetings about her level of understanding as to the requirements.
[165] The Applicant was asked at the hearing whether she would ever administer Oxytocin without a medical order again, she replies “No I certainly would not. I think no matter how many years or how old you are you can still learn some new-something new and that’s important”. 244
[166] As to whether there was a lack of serious insight as claimed by the Respondent, the Applicant points to various points in the transcript where the Applicant accepts the risk of serious harm. 245 The Applicant also agrees it was clinically unsound. However, the Applicant’s evidence in chief was that there was no risk in commencing the infusion. Under cross-examination it was not clear that she understood the seriousness of the risk.246
[167] The Applicant’s claims that she was “under pressure” did not stand up to scrutiny. Ultimately, the Applicant under re-examination said her reasons for administering the medication were the patient was not really making progress and she was encouraged by Ms Ooi. 247 I have found that she was not encouraged to do it by Ms Ooi. Further, this statement is inconsistent with the statement made moments earlier when the Applicant agrees that being under pressure was a clinically unsound reason to intervene says: “Yes, I don’t believe that we need to speed up labour otherwise. I don’t usually augment or profess to interfere or intervene”.248
[168] Overall I think the Applicant shows some level of insight into the seriousness of her actions but is very inconsistent, making concessions at times and at other times continuing to assert there was no risk.
[169] There is also the matter of the additional patient notes that the Applicant referred to for the first time during the hearing. Counsel for the Respondent asks me to find that she lied about the other patient notes that she claimed to have made. The Applicant submits that the Applicant didn’t include them on the basis of legal advice. Indeed the evidence of the Applicant is clear that this is the reason they were not included. In making that statement (despite the best efforts of all to have the Applicant understand the consequences) it is apparent the Applicant waived legal privilege to the extent of the evidence she gave. It was then open to the Respondents counsel to test her on that evidence. The Applicant is asked on cross-examination about the notes and she maintains they exist. 249 Counsel for the Applicant submits, and I agree, there is an insufficient basis to find that the Applicant fabricated this part of her evidence.250 However, the fact that the notes were not produced means I can hardly rely on them in my consideration. That is, the state of the evidence is that I accept that they exist but I have not seen them. I am left with the evidence of Professor Permezel saying the notes that he saw were only cursory. Perhaps the missing notes are less so, but I am not in a position to know. In any case, the missing notes are peripheral to my determination on whether the conduct was serious misconduct.
CONSIDERATION
Was the dismissal unfair?
[170] Before commencing the consideration of the matters to be taken into account in assessing whether a dismissal is harsh, unjust or unreasonable set out in s.387 of the Act, I will deal with the competing submissions of counsel which dealt with the correct approach to take in considering seriousness of conduct. Having considered the authorities to which I was referred, the different approaches urged are probably more nuanced than real. Both the Applicant and Respondent relied on BHP Coal Pty Ltd v Schmidt 251 as authority for the correct approach, and I respectfully agree. In that matter, the Full Bench approached the question in terms of proportionality and not in terms of “strength” of the valid reason.252 It is clear that the Full Bench considered the significance and importance of the conduct in determining valid reason.253
[171] Further, I agree that with the tenor of the Applicant’s submission of 8 December 2016 that notwithstanding the characterisation of the strength of the valid reason, a dismissal can be harsh because of various mitigating factors. 254
[172] Counsel for the Applicant conceded there is a valid reason. I have found that the Applicant has been involved in serious misconduct. There is no doubt that there is a valid reason for the termination. The reason is sound and defensible. 255
[173] The Applicant does not press any submissions alleging procedural fairness deficiencies. 256
[174] There was no refusal to allow the Applicant to have a support person.
[175] This factor is not relevant as the termination related to allegations of serious misconduct.
[176] The Respondent is a large organisation. There is no suggestion that the factors in s.387(f) and (g) would have had an impact on the procedures followed in effecting the dismissal. I agree with the Applicants submission that these are neutral considerations. 257
[177] The Applicant submits that I take into account a range of other matters and submit that, whether there is a valid reason or not, the dismissal was unfair on the stand alone basis that it was harsh. 258
[178] In B, C and D v Australian Postal Corporation 259 the majority noted that it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal.260
[179] The Applicant submits that the dismissal is harsh because:
“(a) of the impact of the dismissal on the Applicant’s personal circumstances;
(b) of the long, successful and unblemished career that the Applicant had prior to the dismissal; and
(c) it is disproportionate to the gravity of the misconduct;
(d) the dismissal was not consistent with clause 11.11(f) of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2012 – 2016.” 261
The impact of the dismissal
[180] The Applicant has not secured permanent employment since she was dismissed and earns much less income than prior to her dismissal. The Applicant gave evidence that she is devastated by the dismissal and it caused her a lot of grief. 262 The Respondent makes the point that it was the Applicants choice not to look for work immediately after she was dismissed, pending the outcome from AHPRA. The Respondent also submits that the Applicant could look for additional work and this differs from a situation where an employee is unlikely to be able to obtain other work. Taking those matters into account, I don’t accept this factor weighs significantly in favour of a finding of harshness.
The Applicant’s work history
[181] Prior to the events of 13 April 2016, the Applicant had not been the subject of any performance management, performance counselling and had never been the subject of any disciplinary action in relation to her performance and conduct. 263 The Applicant had worked in various senior roles for the Respondent. This is an agreed fact and the Respondent agrees that it tends towards a finding that the dismissal was harsh. However, the Respondent submits that this factor “cuts both ways”. That the Respondent is entitled to expect from such a senior and long serving employee, who is an example to junior midwives and students (whom she had responsibility for mentoring) that she will not put patients’ lives at risk by failing to follow proper clinical practices and procedures involving dangerous drugs. This factor tends against a finding that the dismissal has harsh in light of the Applicants previous long and unblemished service. I agree with this submission. However while the factor pointed out by the Respondent does cut both ways, on balance, having regard to the long period of employment without previous incident, this factor does weigh slightly in favour of a finding that the dismissal was harsh.
The gravity of the misconduct
[182] The Applicant submits that, in the particular circumstances of this case, the decision to terminate is disproportionate to the gravity of the misconduct. This submission relies on four factors;
(i) The role of the ANUM, Ms Ooi, in the misconduct
[183] I accept that the involvement of Ms Ooi, as I stated above, diminishes to some extent the gravity of the misconduct and this is a factor weighing in favour of a finding that the termination was harsh. However, I have found that Ms Ooi agreed with and facilitated the administration of the drug. I have found that in that context she endorsed the decision. However, I am not satisfied that she “encouraged it”. Indeed it is clear that the Applicant initiated the action. Nevertheless, the involvement of Ms Ooi is a factor that diminishes to some extent the gravity of the Applicant’s misconduct though not to the extent that the Applicant submits, as I do not agree that Ms Ooi encouraged the giving of the medication.
(ii) The AHPRA investigation
[184] The Applicant submits that it is of significance that the Nursing and Midwifery Board of Australia (the Board) based on an investigation conducted by AHPRA issued the Applicant with a caution which is the lowest level disciplinary outcome available. The Respondent submits that this factor is irrelevant as the evidence is hearsay. Further that there is no evidence as to what information was provided to AHPRA or the Board on which the Board based its conclusion.
[185] I do not entirely agree with this submission of the Respondent. There are reasons provided for the action taken by the Board as follows:
“ Mrs Born administered an oxytocic infusion to a patient without first obtaining an order for this medication from medical staff. It is considered that Mrs Born’s practice in this incident was unsatisfactory.
- Mrs Born’s apparent insight into her actions in this case, and her indication that she will not repeat them.
- The deterrence value of a caution.” 264
[186] It is clear from my consideration above that a number of findings I have made are inconsistent with the reasons of the Board, as set out above. In particular it is clear that I have found that the Applicant did not make an appropriate assessment of risk factors before administering the infusion. I note the Board took into account that the Applicant is of the view that she did not endanger the patient. I have found that the Applicant did endanger the patient and I have found the Applicant engaged in serious misconduct. The Board appears to be satisfied with the level of insight of the Applicant into her actions. I have concluded as per the above that the Applicant has demonstrated some insight into her actions but she is inconsistent.
[187] I agree with the Applicant that the decision of the Board needs to be taken into account in the consideration of whether the termination was disproportionate. 265 I note that this was a low level of sanction compared to other alternatives open to the board. I have little information as to what evidence was before AHPRA and the Board. I respect the fact that the Board are the expert regulator of the midwifery profession. However, for the reasons above, while I agree with the Applicant that this is a matter that should be taken into account, I am inclined to accord it a much lower significance than that the Applicant urges me to. Overall, this consideration weighs towards a finding that the termination was disproportionate but for the reasons set out, not significantly so.
(iii) The Applicant was allowed to continue working
[188] It is not in dispute that the Applicant was allowed to continue working on 14, 16 and 17 April. The Applicant submits that the fact that she was allowed to work these shifts, underscores the harshness of the Respondent’s decision to dismiss her. However, it emerged during the hearing that the Applicant worked three shifts, all of them in the Emergency Department, not in the birthing suite. Ms Patrick explained this removed any risk of the behaviour being repeated. Further, as Ms Cull and Ms Patrick pointed out, they sought to put in place a process of investigation and allow an opportunity for the Applicant to explain her actions. Standing her down without an opportunity to do this would not have been fair and reasonable. When this background is considered, the decision to allow the Applicant to work the three shifts prior to standing her down is not a factor that supports a finding that the termination was disproportionate.
(iv) Level of risk caused by the administration of Oxytocin
[189] I have dealt with this issue comprehensively. The administration of the Oxytocin was serious misconduct. It weighs strongly against a finding that the dismissal was disproportionate.
Clause 11.11(f) of the Agreement
[190] As I have found that the conduct is serious misconduct, this factor is not relevant.
[191] The valid reason for the Applicant’s dismissal and the lack of any procedural unfairness in effecting the dismissal are matters that weigh against a finding that the dismissal was unfair.
[192] I have considered whether the decision to terminate is disproportionate to the gravity of the misconduct, taking into account the four factors referred to by the Applicant. In short, the role of the ANUM, the AHPRA outcome, that the Applicant was allowed to continue working for a short time after the conduct became known and the level of risk caused by the administration of Oxytocin.
[193] For the reasons given above, I agree that a consideration of the involvement of Ms Ooi and the outcome from the AHPRA investigation weigh towards a finding that the termination was disproportionate. However, for the reasons given above, not significantly so. I have set out my findings as to the seriousness of the misconduct above at paragraphs [160]-[162]. I am not satisfied that the involvement of the ANUM and the AHPRA outcome, when balanced against the factors that constituted the valid reason for dismissal satisfy me that the termination was disproportionate.
[194] The Applicants work history and the impact on her of the dismissal are matters to take into consideration and these factors weigh in favour of a finding of harshness. For the reasons discussed above, I do not consider the impact of the dismissal to be a significant factor. The Applicants long and unblemished work history while significant, should be balanced against the Respondents reasonable expectation that such a senior employee would follow proper clinical practices and procedures. The Applicants insight into the seriousness of her actions is inconsistent. Considering all of these factors, including with the factors considered in the context of proportionality, do not outweigh the factors that constituted the valid reason for dismissal and the lack of any procedural unfairness in effecting the dismissal.
[195] In all of the circumstances I find that the termination of the Applicant’s employment was not harsh, unjust or unreasonable.
[196] The application for an unfair dismissal remedy is dismissed. An order will be issued concurrently with this decision.
COMMISSIONER
Appearances:
Y Bakri of Counsel for the Applicant
J Tracey of Counsel for the Respondent
Hearing details:
2016
Melbourne:
24, 25 October, 1 December.
Final written submissions:
28 November 2016
1 Exhibit R3, Witness Statement of Helen Cull, Annexure HC - 5
2 Exhibit A2, First Witness Statement of Ian Geoffrey Pettigrew and Exhibit A3, Second Witness Statement of Ian Geoffrey Pettigrew
3 PN57 – PN58
4 Exhibit A7, Statement of Barry Megennis
5 Exhibit R1, First Witness Statement of Professor Michael Permezel and Exhibit R2, Second Witness Statement of Professor Michael Permezel
6 Exhibit R3, Witness Statement of Helen Cull
7 Exhibit R4, Witness Statement of Alison Patrick
8 Exhibit R6, Witness Statement of Chase Medwin
9 Exhibit R7, Witness Statement of Samantha Mooney
10 Exhibit R3, Witness Statement of Helen Cull, Annexure HC – 5
11 PN25
12 Respondent’s Closing Submissions, dated 28 November 2016, [10]
13 Statement of Agreed Facts filed 5 December 2016
14 PN559
15 Exhibit A4, First Witness Statement of Jirina Born, [9] – [10]
16 Exhibit R7, Witness Statement of Samantha Mooney, [6]
17 Exhibit A1, The Patient Notes
18 Exhibit A4, First Witness Statement of Jirina Born, [11]
19 PN430 - PN434
20 PN485 - PN486
21 Exhibit A4, First Witness Statement of Jirina Born, [11]
22 Exhibit A4, First Witness Statement of Jirina Born, [12]
23 Exhibit A4, First Witness Statement of Jirina Born, [14]
24 Exhibit A4, First Witness Statement of Jirina Born, [16]
25 PN1157 and PN1190 - PN1191
26 Exhibit A4, First Witness Statement of Jirina Born, [17]
27 PN1157
28 PN1169
29 PN1248
30 PN1253
31 PN584 - PN603
32 PN1005
33 Exhibit A4, First Witness Statement of Jirina Born, [18]
34 PN1190 - PN1191
35 PN 1260 - PN1261
36 Exhibit A4, First Witness Statement of Jirina Born, [20]
37 PN1196
38 PN1178
39 PN1158 - PN1159
40 PN1164
41 Exhibit A8, Form F2 – Unfair dismissal application of Ms Ooi
42 PN1347
43 Exhibit A9, Notes headed incident occurring Wednesday, 13th April 2016 and PN1386
44 PN1302
45 Exhibit A4, First Witness Statement of Jirina Born, [19] – [20]
46 PN1304
47 Exhibit A4, First Witness Statement of Jirina Born, [21]
48 Exhibit R7, Witness Statement of Samantha Mooney, [26]
49 Statement of Agreed Facts filed 5 December 2016, [10]
50 Exhibit A4, First Witness Statement of Jirina Born, [22]
51 PN653 - PN659 and PN749 - PN762
52 Exhibit A4, First Witness Statement of Jirina Born, [22]
53 Exhibit A4, First Witness Statement of Jirina Born, [24]
54 PN1161 - PN1162
55 Exhibit R6, Witness Statement of Chase Medwin, [7]
56 Exhibit R6, Witness Statement of Chase Medwin, [8] – [9]
57 PN809
58 PN812
59 PN849
60 PN833 - PN834 and First Witness Statement of Jirina Born, [26]
61 PN865 - PN866
62 Exhibit R6, Witness Statement of Chase Medwin, [9]
63 PN2050
64 PN2051 - PN2052
65 PN2057
66 Exhibit R6, Witness Statement of Chase Medwin, [14]
67 Exhibit A4, First Witness Statement of Jirina Born, [25]
68 PN2058 - PN2063
69 PN840
70 Exhibit R6, Witness Statement of Chase Medwin, [10]
71 PN2065
72 PN2068
73 Exhibit A4, First Witness Statement of Jirina Born, [33]
74 Exhibit R6, Witness Statement of Chase Medwin, [11]
75 Exhibit R7, Witness Statement of Samantha Mooney, [9] – [10]
76 Exhibit R6, Witness Statement of Chase Medwin, [11]
77 Exhibit A1, The Patient Notes
78 PN2079 - PN2080
79 Exhibit A4, First Witness Statement of Jirina Born, [29]
80 PN862
81 Exhibit R6, Witness Statement of Chase Medwin, [12]
82 PN408, PN858-860
83 Exhibit A4, First Witness Statement of Jirina Born, [29]
84 Exhibit R7, Witness Statement of Samantha Mooney, Annexure SM - 1
85 Exhibit A4, First Witness Statement of Jirina Born, [28]
86 Exhibit R7, Witness Statement of Samantha Mooney, [14]
87 Exhibit R7, Witness Statement of Samantha Mooney, [17] – [18]
88 Statement of Agreed Facts filed 5 December 2016, [15]
89 Exhibit R1, First Witness Statement of Professor Michael Permezel, [4]
90 Exhibit R1, First Witness Statement of Professor Michael Permezel, [5] – [6]
91 Exhibit R1, First Witness Statement of Professor Michael Permezel, Annexure MP - 3 at Page 6
92 Exhibit R1, First Witness Statement of Professor Michael Permezel, Annexure MP - 3 at Page 7
93 Exhibit R2, Second Witness Statement of Professor Michael Permezel, [13]
94 PN1529
95 PN1530
96 PN1531
97 PN1562
98 Exhibit R1, First Witness Statement of Professor Michael Permezel, [8] – [13]
99 Exhibit R1, First Witness Statement of Professor Michael Permezel, [14]
100 Exhibit R1, First Witness Statement of Professor Michael Permezel, [17(c)]
101 Exhibit R7, Witness Statement of Samantha Mooney, [27]
102 PN2161
103 Exhibit R1, First Witness Statement of Professor Michael Permezel, [15]
104 Exhibit R1, First Witness Statement of Professor Michael Permezel, [16]
105 Exhibit R2, Second Witness Statement of Professor Michael Permezel, [7]
106 Exhibit R2, Second Witness Statement of Professor Michael Permezel, [9]
107 PN203 - PN214
108 PN214
109 PN1573
110 Exhibit R1, First Witness Statement of Professor Michael Permezel, [17]
111 Exhibit R1, First Witness Statement of Professor Michael Permezel, [16(a)]
112 Exhibit R2, Second Witness Statement of Professor Michael Permezel [4]
113 PN1518
114 PN1519
115 PN1619
116 PN2188
117 Applicant’s Closing Submissions, dated 14 November 2016, [29] – [31]
118 PN1569
119 PN1574
120 Exhibit A2, First Witness Statement of Ian Geoffrey Pettigrew, Annexure IP - 3
121 Exhibit A2, First Witness Statement of Ian Geoffrey Pettigrew, Annexure IP – 3 at Pages 3-4
122 Exhibit A2, First Witness Statement of Ian Geoffrey Pettigrew, Annexure IP – 3 at Page 2
123 PN246 - PN247
124 PN157-158
125 PN192 - 195
126 PN261 - 265
127 PN154
128 PN163
129 Applicant’s Closing Submissions, dated 14 November 2016, [27] – [28]
130 PN267 - PN269
131 PN271
132 PN275 – PN276
133 PN279 – PN280
134 PN311 – PN314
135 Exhibit R2, Second Witness Statement of Professor Michael Permezel, [13]
136 Exhibit R2, Second Witness Statement of Professor Michael Permezel, [14]
137 Exhibit R2, Second Witness Statement of Professor Michael Permezel, [15]
138 Exhibit A2, First Witness Statement of Ian Geoffrey Pettigrew, Annexure IP – 3 at Pages 2-3
139 PN174
140 PN187
141 Applicant’s Closing Submissions, dated 14 November 2016, [32]
142 Applicant’s Closing Submissions, dated 14 November 2016, [42]
143 Respondent’s Closing Submissions, dated 28 November 2016, [7]
144 PN1725
145 Exhibit R3, Witness Statement of Helen Cull, [7] and HC-2
146 Exhibit R3, Witness Statement of Helen Cull, [12]
147 Exhibit R3, Witness Statement of Helen Cull, [16]
148 Exhibit R3, Witness Statement of Helen Cull, [17]
149 PN1772
150 PN1773 - PN1774
151 Exhibit R4, Witness Statement of Alison Patrick, [6]
152 Exhibit R4, Witness Statement of Alison Patrick, [7]
153 Exhibit R4, Witness Statement of Alison Patrick, [10]
154 Exhibit R4, Witness Statement of Alison Patrick, [11]
155 Exhibit R4, Witness Statement of Alison Patrick, [14]
156 Exhibit R4, Witness Statement of Alison Patrick, [15]
157 Exhibit R4, Witness Statement of Alison Patrick, [16]
158 Exhibit R4, Witness Statement of Alison Patrick, [17]
159 PN1838
160 PN1950
161 PN1869 - PN1870
162 PN1912
163 PN1914
164 PN1977
165 Statement of Agreed Facts filed 5 December 2016, [18]
166 Exhibit A4, First Witness Statement of Jirina Born, [21]
167 PN915
168 PN916
169 PN1011
170 PN1036 - PN1038
171 PN793 - PN794
172 Exhibit A4, First Witness Statement of Jirina Born, [39]
173 Exhibit A4, First Witness Statement of Jirina Born, [32] – [33]
174 Exhibit A4, First Witness Statement of Jirina Born, [38]
175 PN465 - PN466
176 PN483
177 PN471 and PN484
178 PN471
179 Exhibit A4, First Witness Statement of Jirina Born, [40] - [41]
180 PN964 - PN965
181 PN970 - PN972
182 PN978
183 PN1000 - PN1004
184 PN487
185 PN490
186 PN491 - PN512
187 Exhibit A4, First Witness Statement of Jirina Born, [42]
188 Statement of Agreed Facts filed 5 December 2016 , [22] – [23]
189 PN2379 - PN2388
190 Exhibit A5, Second Witness Statement of Jirina Born
191 Applicant’s Closing Submissions, dated 14 November 2016, [61]
192 Respondent’s Closing Submissions, dated 28 November 2016, [20]
193 Applicant’s Closing Submissions, dated 14 November 2016, [26] and PN2267
194 PN1216 - PN1217
195 PN2353
196 PN1247 - PN1248
197 Exhibit A4, First Witness Statement of Jirina Born, [17]
198 PN1253 - PN1255
199 Exhibit A4, First Witness Statement of Jirina Born, [18]
200 PN1256 - PN1258
201 Exhibit A4, First Witness Statement of Jirina Born, [18]
202 PN1259
203 Exhibit A4, First Witness Statement of Jirina Born, [19]
204 PN1192
205 Exhibit A1, The Patient Notes
206 Exhibit A1, The Patient Notes
207 PN1291
208 PN1295 - PN1297
209 PN2505
210 PN2714
211 Exhibit A4, First Witness Statement of Jirina Born, [20]
212 PN1157- PN1159 and PN1164
213 PN1319
214 PN1348 and Exhibit A8, Form F2 – Unfair dismissal application of Ms Ooi, Part 3.2 [8]
215 PN2513
216 Exhibit A9, Notes headed incident occurring Wednesday, 13th April 2016 and PN1393 - PN1394
217 PN1772 - PN1775
218 PN2319 - PN2320
219 PN2584
220 Applicant’s Closing Submissions, dated 14 November 2016, [32]
221 Exhibit A2, First Witness Statement of Ian Geoffrey Pettigrew, Annexure IP 3, at Page 2
222 Exhibit R2, Second Witness Statement of Professor Michael Permezel [13]
223 PN2586
224 Exhibit A4, First Witness Statement of Jirina Born, [21]
225 Exhibit A4, First Witness Statement of Jirina Born, [41]
226 Statement of Agreed Facts filed 5 December 2016, [10]
227 PN978 and PN1000 - PN1004
228 PN163 - PN165
229 PN154 - PN155
230 Exhibit R1, First Witness Statement of Professor Michael Permezel, [17]
231 PN1574
232 PN1609
233 PN1562
234 PN193, PN248 and PN314
235 PN1573
236 Exhibit R1, First Witness Statement of Professor Michael Permezel, [16]
237 PN1569
238 PN1574
239 PN2588
240 Statement of Agreed Facts filed 5 December 2016, [12] – [13]
241 PN466
242 PN269 - PN270
243 PN792 - PN794
244 PN424
245 PN464, PN466, and PN483
246 PN500-PN512
247 PN1005
248 PN1000
249 PN748 - PN763
250 PN2372
251 BHP Coal Pty Ltd v Schmidt (2016) 257 IR 11
252 (2016) 257 IR 11, [24] – [25]
253 (2016) 257 IR 11, [17]
254 See B, C and D v Australian Postal Corporation [2013] FWCFB 6191 and Australian Postal Corp v Rushiti [2012] FWAFB 7423, [47]
255 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
256 Applicant’s Closing Submissions, dated 14 November 2016, [51]
257 Applicant’s Closing Submissions, dated 14 November 2016, [52]
258 Applicant’s Closing Submissions, dated 14 November 2016, [53]
260 [2013] FWCFB 6191, [41]
261 Applicant’s Closing Submissions, dated 14 November 2016, [55]
262 PN363
263 Statement of Agreed Facts filed 5 December 2016, [6]
264 Exhibit A5, Second Witness Statement of Jirina Born, Annexure JB - 4
265 This is consistent with the approach in Logan v Bendigo Health Care Group [2016] FWC 6780
Printed by authority of the Commonwealth Government Printer
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APPENDIX A
APPLICANT’S GLOSSARY OF KEY TERMS IN THE EVIDENCE
Term |
Meaning |
ANUM |
Associate Nurse Unit Manager |
AHPRA |
Australian Health Practitioner Regulation Agency |
Augment labour |
Intervention that is intended to increase the intensity of labour |
Cephalopelvic disproportion |
The baby's head is bigger than the mother's pelvis. Also known as CPD |
Hartmann’s Solution |
A solution that is administered intravenously. Sometimes it is infused with another drug such as Oxytocin to allow that drug to be administered intravenously |
Induce labour |
A procedure used to stimulate uterine contractions before labour begins on its own |
Multigravida |
A woman that is or has been pregnant for at least a second time |
Multiparous |
A woman having borne more than one child |
MO |
Medical officer/ doctor |
Medication order |
Authorisation from a medical officer to administer mediation |
NMBA |
Nursing and Midwifery Board of Australia |
Nulliparous |
A woman who has not borne a child before |
Oxytocin |
A drug used to induce/augment labour |
Partogram |
A longitudinal record of vaginal examinations throughout labour |
Primagravid |
A woman who has not borne a child before |
Syntocinon |
The brand name of Oxytocin |
First stage of labour |
The period when contractions commence until the cervix is fully dilated |
Second stage of labour |
Commences when the patient's cervix is fully dilated and ends when the foetus is delivered. |
Third stage of labour |
The time from the birth of the baby to the expulsion of the placenta and membranes and the control of bleeding |