| [2020] FWC 2193 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Louise Hay
v
Ambulance Victoria
(U2019/2083)
DEPUTY PRESIDENT YOUNG |
MELBOURNE, 28 APRIL 2020 |
Application for an unfair dismissal remedy.
[1] On 26 February 2019, Ms Louise Hay made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Ambulance Victoria (AV). Ms Hay seeks reinstatement and compensation for lost remuneration.
[2] AV denies that Ms Hay was unfairly dismissed on the basis that the dismissal was not harsh, unjust or unreasonable.
[3] Ms Hay was employed by AV in the position of Mobile Intensive Care Ambulance (MICA) Paramedic. On 21 February 2019 Ms Hay’s employment was summarily terminated for serious and wilful misconduct pursuant to clause 60.5 of the Ambulance Victoria Enterprise Agreement 2015 (Varied and Extended) (Agreement). At the time of her dismissal Ms Hay had been employed by AV for approximately 19 years and held the substantive role of Paramedic for approximately 10 years. The misconduct relied upon by AV to justify Ms Hay’s termination of employment arose from the attendance by Ms Hay on 2 October 2017 to a 15 year old boy presenting in cardiac arrest due to intentional hanging.
[4] On 5 – 7 June, 24 – 26 July and 13 September 2019 I conducted the proceeding by way of hearing. Pursuant to section 596 of the Act, Mr Hull appeared on behalf of Ms Hay and Mr Harrington appeared on behalf of AV.
[5] Ms Hay gave evidence on her own behalf and the following witnesses also gave evidence on her behalf:
• Ms Cecilia Wilmot Griffiths, Ambulance Paramedic
• Dr Belinda Flanagan, Academic and Nationally Registered Nurse, Midwife and Paramedic
[6] The following witnesses gave evidence on behalf of AV:
• Mr Mark Rogers, Chief Operating Officer
• Mr Alan Snow, Paramedic Educator
• Ms Maddie Brennan, Advanced Life Support Paramedic
• Mr Jarrod Wakeling, MICA Paramedic
• Ms Jessica Pemberton, Paramedic
• Ms Kelly Mercer, Advanced Life Support Paramedic
• Ms Melanie Jorgensen, mother of Lachlan Jorgensen
• Mr Leigh Jorgensen, father of Lachlan Jorgensen
• Mr Michael Stephenson, Executive Director Emergency Operations
• Prof Stephen Bernard, Medical Director
• Mr Daniel Cudini, Clinical Support Officer
• Mr Murray Kennedy, MICA Paramedic 1
[7] Ms Hay filed submissions in the Commission on 26 April 2019, 9 May 2019, 4 June 2019 and 14 June 2019. AV filed submissions in the Commission on 24 May 2019, 27 May 2019 and 14 July 2019.
[8] Final written closing submissions were filed by Ms Hay on 23 August 2019 (and an amended version on 12 September 2019). Final written closing submissions were filed by AV on 10 September 2019.
[9] The initial matters which must be decided before the merits of an application are considered are not in dispute and I find that:
• Ms Hay’s employment with AV terminated at the initiative of AV;
• Ms Hay was employed for a period in excess of 12 months and had therefore completed a period of employment with AV of at least the minimum employment period;
• at the time of dismissal, the Agreement applied to Ms Hay’s employment. I am therefore satisfied that, at the time of dismissal, Ms Hay was a person protected from unfair dismissal;
• AV was not a small business employer within the meaning of the Act and therefore the Small Business Fair Dismissal Code did not apply; and
• Ms Hay’s dismissal was not effected for reasons of redundancy and therefore it was not a case of genuine redundancy within the meaning of section 389 of the Act.
[10] Having considered each of the initial matters, I am required to consider the merits of Ms Hay’s application.
[11] I have determined that Ms Hay’s dismissal was not unfair. These are my reasons for that decision.
[12] Set out in Annexure A to this decision is a glossary of medical terminology used in this decision and an explanation of some of the medical equipment used and referred to in the evidence.
[13] The following base chronology of events is uncontested.
[14] On the evening of 2 October 2017, at 20.37 AV received a 000 emergency call to attend a 15 year old boy (Lachlan) presenting in cardiac arrest due to intentional hanging (Lachlan’s Case). Crew 1, comprising, Ms Kelly Mercer, an Advanced Life Support (ALS) Paramedic, and Ms Madelaine Brennan, then a Graduate Paramedic, was dispatched at 20.37.40. Crew 2, also comprising one ALS Paramedic, Mr Alan Snow, and a Graduate Paramedic, Ms Jessica Pemberton, was dispatched at 20.37.46. Crew 3, being a MICA crew comprised of Ms Hay and Mr Jarrod Wakeling (MICA 24), was dispatched at 20.37.54.
[15] Crew 1 was first on scene, arriving at 20.41.31, and with Lachlan at approximately 20.44. Crew 2 arrived on scene at 20.52.13 and MICA 24, and therefore Ms Hay, arrived on scene at 20.56.41. MICA 24 were with Lachlan at 20.59.39.
[16] The Helicopter Emergency Medical Service (HEMS 1) was dispatched at 20.45.38 and its dispatch cancelled by Mr Wakeling at 20.59.51.
[17] At 21.08.00, after approximately 23 – 24 minutes of resuscitation and approximately eight minutes after MICA 24 arrived at the scene, attempts to resuscitate Lachlan ceased. Lachlan died at the scene.
[18] Following clearing the scene each attending crew completed an electronic patient care record (ePCR) in relation to Lachlan’s Case.
[19] Following Lachlan’s death, AV undertook a clinical case review of the circumstances of Lachlan’s Case. That review was undertaken by Mr Daniel Cudini. On 20 November 2017 Mr Cudini produced a clinical case review report of his review (Cudini Report).
[20] The Cudini Report identified the following issues for investigation:
“1. The Riddles Creek (RC) ALS crew were first on scene (o/s) and observed asystole as the presenting rhythm on the Zoll monitor screen. The rhythm was not printed out to confirm. This was relayed during handover to both Hanging Rock (HR) ALS crew and MICA 24 (Z24). The ZOLL ECG summary displays Sinus Bradycardia as the initial presenting rhythm.
2. On arrival of the second ALS crew (HR), the patient continued to present with an obstructed airway due to copious vomitus. This was unsuccessfully rectified by the RC crew (first crew o/s). The airway was effectively cleared and ventilated by the HR crew 14 minutes after the resuscitation had commenced.
3. The alleged down time of the patient was 10 - 20 minutes and information identified through the interview process could suggest the downtime was < 10 mins.
4. Upon arrival of Z24 (21:02), changes in ECG rhythms had occurred associated with significant improvement in ETCO2 and effective CPR being performed. The Z24 attendant advised the paramedic’s o/s to cease CPR / Advance Cardiac Life Support (ACLS) at 21:08 after approximately 23 mins of AV resuscitation.
5. Allegedly, the Z24 attendant was advised three times by the ALS Paramedic Educator o/s that the patients ECG rhythm had changed (Sinus Bradycardia and Accelerated Idioventricular) and was associated with significant improvement in ETCO2 / patient skin colour. This was allegedly dismissed on all three occasions by the Z24 attendant and resuscitation was ceased.
6. The ECG rhythms / ETCO2 highlighted in the Zoll summary (Sinus Bradycardia and Accelerated Idioventricular) reflect the assessment made by the ALS Paramedic Educator (Issue no.5) prior to the Z24 attendant advising to cease resuscitation.
7. AV resuscitation comprised of; CPR, intravenous (IV) Adrenaline and ventilation via a supraglotic airway device (iGel) and resuscitation ceased after approximately 23 minutes. The Z24 attendant assumed the scene leader role at 21:00 (16 minutes into the resuscitation) and no endotracheal intubation (ETI) was performed by the Z24 airway MICA paramedic (MP).
8. The ePCR’s written by RC and Z24 attendants lacked detail and the timing/ interventions performed did not accurately reflect what occurred at the case.
9. Three of the ALS paramedics involved in this case alleged, the Z24 attendant made a number of unprofessional comments and inappropriate clinical decisions at this case. This was identified during the interview process and in the incident reports. The alleged behavioural matters relating to the Z24 attendant have been referred to the Professional Misconduct Unit as per Executive Director of Emergency Operations.” 2
[21] The Cudini Report contained the following timeline and correlating information from the Zoll monitor (Zoll):
“20:37:00 – 000 call received.
20:37:40 – Riddles Creek (RC) dispatched code 1 “AFPEMR CARDIAC OR RESP ARREST”, 2.1 km from location
20:37:46 – Hanging Rock (HR) dispatched code 1 “AFPEMR CARDIAC OR RESP ARREST”, 17.4 km from location
20:37:54 – MICA 24 (Z24) dispatched code 1 “AFPEMR CARDIAC OR RESP ARREST”, 29.5 km from location
20:39:53 – CPR in progress as per call taker 20:40:58 – AAV dispatched on case as per CSP
20:41:31 – RC arrive o/s
20:44:00 – RC at patient – Zoll monitor applied
20:45:04 – SAED “No Shock Advised”, ZOLL printed summary displays Sinus Bradycardia, Heart Rate 30. CPR recommenced
20:45:38 – HEMs 1 dispatched as per AAV
20:47:13 – SAED “No Shock Advised”, ZOLL printed summary displays irregular junctional complexes and PAC, Heart Rate 30.
20:49:24 – SAED “No Shock Advised”, ZOLL printed summary displays asystole and PAC
20:51:34 – SAED “No Shock Advised”, ZOLL printed summary displays asystole
20:53:43 – SAED “No Shock Advised”, ZOLL printed summary displays asystole, PAC and a QRS complex with prolonged PR interval. Regular ventricular complexes evident under CPR.
20:55:53 – SAED “No Shock Advised”, ZOLL printed summary displays asystole, one ventricular narrow complex evident
20:56:41 – Z24 arrive o/s
20:57:03 – HEMs 1: ETA < 10 minutes
20:58:03 – SAED “No Shock Advised”, ZOLL printed summary displays asystole
20:59:51 – HEMs 1 cancelled
21:00:04 – SAED “No Shock Advised”, ZOLL printed summary displays Sinus Bradycardia, Heart Rate 30, ETCO2 38 mmHg. CPR continued.
21:02:23 – SAED “No Shock Advised”, ZOLL printed summary displays asystole 21:04:33 – SAED “No Shock Advised”, ZOLL printed summary displays asystole. CPR recommenced, ETCO2 68 mmHg
21:06:43 – SAED “No Shock Advised”, ZOLL printed summary displays Sinus Bradycardia transitioning to Sinus Rhythm with 1st degree AVNB transitioning to accelerated idoventricular rhythm, Heart Rate 96, ETCO2 80 mmHg. No CPR was being performed at this point. Nil palpable carotid or femoral pulses present.
21:08:00 – Resuscitation ceased
21:10:08 – Patient signal 83
21:24:17 – Z24 clear of case
21:37:39 – HR clear of case
21:54:59 – RC clear of case” 3
[22] The overall conclusion of the Cudini Report was as follows:
“This unfortunate case highlighted circumstances where significant emotion, cognitive overload / bias’s and unprofessional behaviour lead to poor communication, clinical decision making / judgement, loss of situational awareness and an ineffective team working environment.
The initial incorrect rhythm recognition and failure to rapidly address the patient’s airway obstruction may have further impacted on the likelihood of achieving ROSC. Once the patient’s obstruction was adequately removed and effective ventilation / oxygenation restored, significant improvements in skin colour and changes in ECG rhythm / ETCO2 were observed.
The patient did not receive the expected AV standard of minimum 30 minutes ACLS resuscitation. Furthermore, compelling evidence existed to continue resuscitation based on age, changes in skin colour, ECG rhythm and ETCO2 affording the patient and the patient’s family every opportunity to achieve ROSC.” 4
[23] On 30 November 2017 AV advised Ms Hay that she was placed on alternative duties effective that day due to concerns it had regarding her clinical practice and behavior associated with her clinical practice. It also advised her that a review process of her clinical performance would be undertaken. This review was undertaken by the Professional Conduct Unit (PCU).
[24] On 14 March 2018 AV advised Ms Hay in writing that:
• the PCU review process was concluded;
• allegations of misconduct concerning Ms Hay’s professional conduct during attendance at Lachlan’s Case had been made against her (Allegations); and
• an independent external Investigator (Investigator) had been engaged to conduct an investigation into the Allegations.
[25] The Allegations were as follows:
“Allegation 1
1. On 2 October 2017, when in attendance on a 15 year old male patient who had
attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you failed to take reasonable care for the health and safety of the patient as follows:
1.1 You directed the treating paramedics to cease resuscitation on the patient in circumstances where:
(a) you were aware that there were 'compelling reasons' to continue resuscitation, namely:
(i) the patient was under the age of 18 years; and
(ii) 'signs of life', including an accelerated idioventricular rhythm, heart rate 96, ETC02 80 mmHg and significant improved skin colour
(b) you were aware that resuscitation by Ambulance Victoria had been undertaken for approximately 23 minutes and the minimum expected timeframe for resuscitation is 30 minutes prior to cessation and/or it was premature to cease resuscitation.
Allegation 2
8. On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present you were the scene leader, you failed to take reasonable care for the health and safety of the patient by unreasonably dismissing advice regarding 'compelling reasons' to continue resuscitation which were brought to your attention by the Paramedic Educator on the scene, Mr Alan Snow, as follows:
8.1 Shortly after you arrived on the scene at 20:59, the ALS Paramedic Educator on scene, Mr Alan Snow, advised you that there was some spontaneous cardiac activity. You dismissed Mr Snow's advice and said words to the following effect 'That is artefact'. Mr Snow replied that it was not artefact because he could see clear complexes.
8.2 At or around 21:00, Mr Snow advised you that there was a clear narrow complex rhythm. You dismissed Mr Snow's advice and said words to the following effect: 'The rhythm is adrenalin driven'. You instructed Kelly Mercer (ALS Paramedic Clinical Instructor) not to give any more adrenalin to the patient.
8.3 After returning to the patient following a conversation with the patient's parents, you stated that the family had requested that resuscitation cease. Mr Snow again advised you of changes in the patient's ECG rhythm/ETC02, in particular, that there was a clear rhythm. You dismissed Mr Snow's advice and replied 'I am not going to fuck with the family.'
Allegation 3
1. On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you misled the patient's family as to the utility of continuing with resuscitation on the patient, where there were 'compelling reasons' to continue resuscitation and you had been on scene for approximately only 3 minutes.
Allegation 4
1. On 2 October 2017, when in attendance on a 15 year old male patient who had attempted suicide by hanging, and in circumstances where, being the most senior MICA paramedic present, you were the scene leader, you made at least two unprofessional and disrespectful comments regarding the patient and the patient's family in your communications with other attending paramedics as follows:
1.1 you described attempts at continued resuscitation on the patient as 'flogging a dead horse'; and
1.2 when you were advised of clinical changes to the patient you responded by saying 'I am not going to fuck with the family'.” 5
[26] If substantiated, the Allegations were stated to be variously in breach of the Ambulance Victoria Code of Conduct 2017, Clinical Practice Guideline A0203 Withholding or Ceasing Resuscitation (CPG A0203) and certain of AV’s policies.
[27] On that day, AV further advised Ms Hay in writing that she was suspended on full pay, effective immediately, while the Allegations were investigated.
[28] On or around 23 March 2019, the Investigator commenced investigations into the Allegations (Investigation).
[29] On 15 June 2018 Ms Hay filed a Form F10 application for the Commission to deal with a dispute pursuant to the dispute settlement procedure contained in the Agreement concerning her grievance with the disciplinary procedure (First Dispute Application). The First Dispute Application was resolved following a conference before the Commission on 25 June 2018.
[30] On 28 June 2018 Ms Hay, together with her legal representative, attended an interview with the Investigator to provide her response to the Allegations. The interview was recorded and transcribed. Ms Hay was subsequently provided with a transcript of her interview with the Investigator (Interview Transcript) and on 17 July 2018 Ms Hay confirmed to the Investigator that she had read the Interview Transcript and that it was accurate. She indicated this by signing each page of the Interview Transcript.
[31] On or about 30 August 2018, the Investigator concluded the Investigation and provided AV with an investigation report.
[32] On 13 September 2018, the PCU created a briefing note that informed Mr Mark Rogers, Chief Operating Officer of AV, as delegate of the Chief Executive Officer, of the Investigation findings. That briefing note recommended that disciplinary action, in the form of termination of employment, be taken against Ms Hay for serious and wilful misconduct in accordance with clause 60.5 of the Agreement.
[33] On 24 September 2018, Mr Rogers advised Ms Hay in writing that:
• the Investigator had found Allegations 1 and 3 substantiated, Allegation 2 partially substantiated and Allegation 4 not substantiated;
• the Investigator had found the substantiated conduct in Allegations 1, 2 and 3 constituted a breach of CPG A0203 and AV’s Professional Conduct Policy and Procedure;
• the Investigator had found the substantiated conduct in Allegations 1 and 3 constituted a breach of Part 3.1 of AV’s Code of Conduct;
• the Investigator had found the substantiated conduct in Allegation 2 constituted a breach of Part 3.1 and Part 4.1 of AV’s Code of Conduct;
• AV accepted the Investigator’s findings;
• AV considered that Ms Hay had engaged in serious and wilful misconduct with the meaning of clause 60.5 of the Agreement;
• the proposed disciplinary action was termination of employment; and
• AV required Ms Hay to show cause within 10 days as to why the proposed disciplinary action ought not be taken.
[34] On 6 October 2018, Ms Hay provided her show cause response and filed a second Form F10 for the Commission to deal with a dispute pursuant to the dispute settlement procedure contained in the Agreement (Second Dispute Application).
[35] On 7 November 2018, the parties attended a conference before the Commission in relation to the Second Dispute Application. The Second Dispute Application did not resolve.
[36] On 17 January 2019, AV filed a Form F1 Application for an order that the Second Dispute Application be dismissed pursuant to section 587(1)(c) of the Act (AV's section 587 Application).
[37] On 1 February 2019, Ms Hay filed a third Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure.
[38] On 7 February 2019, AV determined that Ms Hay was to be dismissed for serious and wilful misconduct in employment (Dismissal) and foreshadowed that a letter would be issued to Ms Hay communicating the Dismissal following the Commission's determination of AV's section 587 Application.
[39] On 12 February 2019, Ms Hay filed a fourth Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure.
[40] On 19 February 2019, the Commission issued a decision in AV's section 587 Application, in which it granted AV's section 587 Application and dismissed the Second Dispute Application, and Ms Hay’s 1 February 2019 and 12 February 2019 dispute applications.
[41] On 20 February 2019, AV invited Ms Hay to attend a meeting to discuss the disciplinary outcome for the Allegations.
[42] On 20 February 2019, Ms Hay, through Mr Hull, notified AV that she wished to be informed of the disciplinary outcome by way of letter via email rather than by attending a meeting with AV.
[43] On 21 February 2019, AV provided Ms Hay with a letter of termination, confirming that she had been summarily dismissed from her employment for serious and wilful misconduct in accordance with clause 60.5 of the Agreement. 6
[44] I make some preliminary remarks about the evidence.
[45] Firstly, I found Ms Hay to be, generally, an unimpressive witness. Her evidence lacked spontaneity and appeared overly considered, she was reluctant to make concessions where they appeared warranted and appeared to give her evidence with a view to its strategic and forensic advantage. Ms Hay’s evidence as to the events of 2 October 2017 is largely inconsistent with the evidence of the other Paramedics who attended the scene. Where there is a contest on the evidence as between particular witnesses (in particular, Ms Hay and Mr Snow), I will explain below whose evidence I prefer and why.
[46] Secondly, it should be noted that the direct evidence of AV’s attending Paramedic witnesses, other than Ms Pemberton, has four primary sources; the incident report each provided to Mr Cudini as part of the clinical case review, their record of interview produced as part of the Investigation, their witness statement prepared as part of this proceeding and their oral evidence before the Commission. Ms Hay contended that the accounts provided by AV’s Paramedic witnesses were not consistent and had been embellished over time. AV rejected this contention. As a general statement, I do not find the various statements made by the Paramedic witnesses to be inconsistent. I consider the key elements of their various statements to have remained largely consistent, although I accept that their statements prepared for this proceeding are considerably more fulsome than either their incident reports or their record of interview with the Investigator and contain additional matters. I find nothing unusual in this or the fact that the statements are not in the same form, given the differing purposes for which they were produced and, indeed, the differing manner in which they were produced. However, I will address certain inconsistencies in the evidence of the Paramedic witnesses in the course of setting out my factual findings in these reasons.
[47] Similarly, Ms Hay’s direct evidence also comprised multiple sources; the Investigation Transcript, her witness statement prepared as part of this proceeding and her oral evidence before the Commission. Ms Hay contends that her version of events “unlike those of most of her colleagues” has remained consistent. AV rejects this and contends that in certain important aspects Ms Hay’s evidence is inconsistent. In the course of setting out my factual findings in these reasons I will address certain inconsistencies in Ms Hay’s evidence.
[48] Thirdly, in addition to the above four primary sources, Ms Pemberton’s evidence also comprised notes which she says are her recollection of the events of 2 October 2017. She says she prepared the notes on her home computer on or about 3 October 2017 (JP Notes). She says she prepared the JP Notes because of her concerns regarding AV’s treatment of Lachlan. AV submits that the JP Notes are an accurate and truthful detailed record of aspects of the clinical treatment Lachlan received on the night. I address the JP Notes in the course of setting out my factual findings in these reasons.
[49] Fourthly, AV called Mr Cudini, Mr Stephenson and Professor Bernard, all of whom are employees of AV. Professor Bernard is the Medical Director of AV and has been employed by AV for 26 years. Professor Bernard is a registered medical practitioner, holds a Doctor of Medicine and is a Fellow of the Australasian College of Emergency Medicine, the Australian and New Zealand College of Intensive Care Medicine and the American College of Critical Care Medicine. 7 He is a Senior Specialist in Intensive Care Medicine at the Alfred Hospital, the Director of Intensive Care at Knox Private Hospital and an Adjunct Professor with the Department of Epidemiology and Preventive Medicine at Monash University.8 Mr Stephenson is the Executive Director Clinical Operations for AV, responsible for AV’s road and air operations across Victoria. All AV Paramedics report ultimately to Mr Stephenson in relation to service delivery.9 He has been employed by AV for approximately 22 years.10 Mr Stephenson is a registered MICA Paramedic and continues to practise as one.11 He is also an Adjunct Associate Professor in the Department of Epidemiology and Preventive Medicine at Monash University and an Adjunct Associate Professor in the Department of Community Emergency Heath and Paramedic Practice at Monash University.12 Mr Cudini has been employed by AV for approximately 13 years and is currently employed in the role of Clinical Support Officer, Metropolitan West Region.13 He is a registered and practising MICA Paramedic and has previously held the roles of ALS Paramedic/Clinical Instructor, MICA Paramedic/Clinical Instructor and MICA Paramedic Educator.14 Mr Cudini, Mr Stephenson and Professor Bernard all gave evidence as to what could be drawn as to Lachlan’s condition from the information available from the Zoll. They also all gave evidence as to the standard of clinical care they say Ms Hay ought to have provided Lachlan on the evening of 2 October 2017 as the scene leader and a MICA Paramedic. Mr Hull submitted that this evidence was opinion evidence, although he ultimately did not object to it being received by the Commission.15 Mr Hull also submitted that whilst he did not object to the evidence of these three witnesses being treated as experts, the Commission ought take into account the fact that they were called by a party and did not give any undertaking that their duty as an expert is to the Commission.16 Firstly, whilst AV called Mr Cudini, Mr Stephenson and Professor Bernard because of their specialist knowledge and expertise, which I accept, they were not called by AV as expert witnesses. Secondly, although the Commission is not bound by the rules of evidence,17 it tends to follow them.18 I consider that had the Evidence Act 1995 (Cth) applied, the evidence of Mr Cudini, Mr Stephenson and Professor Bernard would fall within the specialist knowledge exception to the opinion rule. I have had regard to their evidence where I consider it relevant.
[50] Fifthly, it is uncontentious that the Zoll used was that of Crew 1 and was taken with that crew when it left the scene on that evening. Further, it is also uncontentious that Ms Hay sought production of the full Zoll printout, being the print out of all the information recorded by the Zoll during the entire period of its operation at Lachlan’s Case (Full ECG) and that AV did not produce this, on the basis that it could not be located. Ms Hay submits that it “beggars belief” that AV lost a copy of the Full ECG. 19 She submits that this is a critical document of fundamental importance and that the Full ECG is the only clinical record that can provide a complete and accurate analysis of an arrested patient’s cardiac and related activity.20 AV relies upon the ECG Treatment Summary Report and eight ECG strips attached to Mr Cudini’s witness statement.21 I deal with this issue in the course of my reasons.
[51] Sixthly, Ms Hay called Ms Cecilia Wilmot Griffiths and was given leave to call Dr Belinda Flanagan, as an expert witness. AV objected to the entirety of both Ms Wilmot Griffiths’ and Dr Flanagan’s evidence being admitted into evidence. I determined to receive both of their evidence.
[52] Ms Wilmot Griffiths is a MICA Paramedic and work colleague of Ms Hay. Her evidence went to her experience of working with Ms Hay and Ms Hay’s character. Mr Hull agreed with this summation of Ms Wilmot Griffiths’ evidence. 22 Ms Wilmot Griffiths was not an attending Paramedic on 2 October 2017. She gave no direct evidence as to the events of that evening or any of the matters that followed from it. She gave no evidence as to clinical matters nor the standards of behaviour of a MICA Paramedic. Accordingly, I have not relied upon Ms Wilmot Griffiths evidence in reaching my findings of fact.
[53] For the following reasons I have accorded Dr Flanagan’s evidence little weight. Firstly, I consider that Dr Flanagan lacks the relevant expertise and knowledge to assist the Commission. Dr Flanagan is a Registered Nurse, Midwife and Advanced Care Paramedic. 23 She is currently employed as an academic in the Faculty of Health Science, Education and Engineering at the University of the Sunshine Coast (USC).24 She holds a Masters of Midwifery and a Doctor of Philosophy.25 The USC website26 and Dr Flanagan’s curriculum vitae27 indicate that her professional emphasis is Paramedic obstetrics and neo-natal care. Her PhD involved an epidemiological study of unplanned birth before arrival at hospital while in Paramedic care and an examination of factors that affect intra-partum care from a mother’s and a Paramedic’s perspective.28 As set out above, her Masters qualification is in Midwifery.29 Her conference presentations, almost exclusively, focus on the subject of women birthing in paramedic care.30 Under cross-examination Dr Flanagan agreed that if it were that she had a specialist expertise, it was in the area of maternal and/or neo-natal emergency paramedicine.31 Accordingly, Dr Flanagan’s area of specific expertise is in maternal and neo-natal emergency paramedicine. It is readily apparent that matters of maternal and neo-natal emergency paramedicine are not relevant to the matters in issue in these proceedings. Further, Dr Flanagan does not hold a MICA Paramedic qualification.32 She said she had an understanding of the MICA training in Victoria33 but she had not researched the training or qualification undertaken by a MICA Paramedic nor their scope of practice.34 She is not trained as a Critical Care Paramedic in Queensland.35 That qualification is a higher paramedic qualification than that of an Advanced Care Paramedic in Queensland.36 She was not sure of the qualifications of an ALS Paramedic in Victoria and had not conducted any research into the qualifications and training of ALS Paramedics in Victoria.37 She was unsure as to the scope of practice of an ALS Paramedic.38 She was unable to say whether an Advanced Care Paramedic was to be equated with an ALS Paramedic in Victoria.39 Accordingly, whilst Dr Flanagan is an Advanced Care Paramedic in Queensland and may be able to give evidence as to the clinical practice and conduct of such Paramedics, Dr Flanagan does not have any particular knowledge of the training, qualifications or scope of practice of either a MICA Paramedic or an ALS Paramedic in Victoria. In circumstances where Dr Flanagan does not have any particular knowledge as to these matters, most particularly training and scope of practice, it is difficult to see how her evidence, even if limited to scene management, could be of assistance to the Commission. Dr Flanagan declined to comment on clinical matters in relation to Lachlan’s Case, on the basis that she understood the matter to be the subject of a Coronial Inquiry40 and, further, that such matters were outside her scope of expertise.41
[54] Secondly, I do not consider that Dr Flanagan could properly comment on the expectations of conduct of a MICA Paramedic at the scene in Lachlan’s Case in the absence of knowledge of a MICA Paramedic’s training and scope of practice. Although Dr Flanagan agreed that comment on clinical management at Lachlan’s Case were outside her scope of expertise, 42 she disagreed that she was not sufficiently qualified to comment on the management of a scene and cardiac arrest.43 She gave evidence that she had attended 50 – 60 cardiac arrests during her 20 years as a Paramedic where she had undertaken “some active resuscitation”.44 Under cross-examination she agreed that management at the scene involved both clinical and non-clinical behaviour by MICA Paramedics.45 Her evidence was that she could comment on the expectations of conduct at a scene by a MICA Paramedic with reference to the expectations of conduct of a Critical Care Paramedic.46 Under cross-examination she accepted that in order to conduct this comparison she would need to understand the training and expertise of a MICA Paramedic in Victoria.47 She said that she did not hold a MICA Paramedic qualification, and that she was not an expert in the training taken by a MICA Paramedic in Victoria.48 She agreed that she did not research the training or qualification undertaken by a MICA Paramedic or their scope of practice.49 I accept that Dr Flanagan may be able to provide comment as to the conduct of an Advanced Care Paramedic at the scene of a cardiac arrest. However, in my view, in order to make any comment of weight as to the conduct of a MICA Paramedic in Victoria at a scene based on the expectations of a Critical Care Paramedic in Queensland in the same circumstances, I consider that Dr Flanagan would need to understand the training and expertise of a MICA Paramedic. Further, Dr Flanagan agreed this would be required.50 On the basis of her own evidence she does not possess this knowledge. Further, there is no other evidence before the Commission upon which it could be concluded that a MICA Paramedic in Victoria is to be equated with a Critical Care Paramedic in Queensland. Accordingly, I accord little weight to Dr Flanagan’s evidence as to scene management and conduct expected of a MICA Paramedic at the scene.
[55] Seventhly, as an administrative, quasi-judicial tribunal, the Commission is required to take into account relevant considerations, and to ignore irrelevant considerations. Relevant considerations are found in “material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.” 51 If the material has probative value the weight to be attached to it is a matter for the decision-maker. The Commission should consider and carefully weigh all relevant material, including circumstantial evidence, and where appropriate draw reasonable inferences.
[56] Finally, as already set out above, the Commission is not bound by the rules of evidence, 52 although it tends to follow them.53 Ultimately, the Commission is obliged to perform its functions in a manner that is fair and just.54
[57] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[58] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 55
[59] I set out my consideration of each below.
[60] Section 387(a) of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account whether there was a valid reason for the dismissal related to the person’s capacity or conduct. The principles that are relevant to the consideration of this concept are well-established. A valid reason is one that is ‘sound, defensible and well-founded.’ 56 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it had been in its position.57 The question the Commission must address is whether there was a valid reason, in the sense both that it was a good reason and a substantiated reason.
[61] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. 58 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.59
[62] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw, 60 the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained”61 and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”62 or “circumstances pointing with a wavering finger to an affirmative conclusion”.63 The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.64
[63] The rule in Briginshaw has elsewhere been described as reflecting a conventional presumption that members of society do not ordinarily engage in fraudulent or criminal behaviour. 65 In Greyhound Racing Authority,66 Santow JA noted:
“… The notion of “inexact proof, and indefinite testimony or indirect inferences” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by [a Tribunal].” 67
[64] The ‘level of comfort’ referred to means that the finder of fact must “feel an actual persuasion of the occurrence or existence of the fact in issue”; the “mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.” 68
[65] It was agreed by the parties that the allegations made against Ms Hay are of the utmost seriousness and that the Commission requires a high degree of satisfaction that the alleged misconduct engaged in had occurred. 69 It was also agreed that the seriousness of the Allegations made against Ms Hay affects the application of Briginshaw.
[66] Ms Hay’s employment was terminated pursuant to clause 60.5 of the Agreement. Clause 60 provides as follows:
“60. DISCIPLINARY PROCESS
60.1 Where disciplinary action is necessary, the management representative shall notify the employee of the reason. The first warning shall be oral and will be recorded on the employee's personal file.
60.2 If the problem continues the matter will be discussed with the employee and a second warning in writing will be given to him/her and recorded on his/her personal file.
60.3 If the problem continues the employee will be seen again by management. If a final warning is to be given then it shall be issued in writing and a copy sent to the relevant Union.
60.4 In the event of the matter recurring, then the employee may be terminated. No dismissals are to take place without the authority of senior management.
60.5 Dismissal of an employee may still occur for acts of "serious and wilful misconduct".
60.6 If a dispute should arise over the disciplinary action, other than termination of an employee who has not completed at least six months service with the employer, the course of action to be followed is that the matter shall be referred to Fair Work Commission for resolution. Such resolution shall be accepted by the parties as final.
60.7 If after any warning, a period of twelve months elapses without any further warning or action being required, all adverse reports relating to the warning must be removed from the employee's personal file.” 70
[67] I note that the Act requires me to consider whether there was a valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. Further, it is well-established that a valid reason need not necessarily be the one relied upon by the employer. AV has advanced several valid reasons for the termination of Ms Hay’s employment. I shall now examine the reasons advanced by AV to determine whether I am actually persuaded that Ms Hay engaged in some or all of the relevant conduct, and whether any such conduct constitutes a valid reason.
[68] Before turning to the events of 2 October 2017, I shall first consider the obligations imposed upon Ms Hay as a MICA Paramedic with AV. Ms Hay submits that AV have failed to identify the standards of professional conduct or the expectations against which she is to be judged. 71 She submits that a breach of the AV Code of Conduct does not establish a breach of professional misconduct.72 Ms Hay submits that other than in respect of the Clinical Practice Guidelines, AV has not made clear what expectations of clinical conduct Ms Hay has breached or their reasonableness. She further submits that the proper standard against which she is to be judged is what might reasonably and properly be required of a person in her position. She says the answer to that is found in the expert report and testimony of Dr Flanagan.73
[69] AV contends that the expectations of Ms Hay as a MICA Paramedic are to be found in the Position Description and the AV Code of Conduct.
[70] The Position Description for an AV MICA Paramedic 74 (Position Description) includes the following:
a) Primary Objective: provide pre-hospital care and treatment for sick and injured people through attempting to stabilize and/or improve the patient condition;
b) Competencies:
i. Focusing on Safety: Identifies and corrects conditions that affect patient/self and colleague safety;
ii. Identifying Issues: Identifies and understands risks, issues, problems and opportunities; makes timely decisions; involves others as required. Considers the impact of decisions on patient outcomes;
iii. Patient and Customer focus: Takes responsibility for patient and customer satisfaction and clinical outcomes;
iv. Professionalism: Adopts a principled and professional approach to work and in dealing with patients, colleagues, teams and stakeholders;
v. Optimism and resilience: Shows persistence and resilience to achieve work goals;
c) Key Deliverables:
i. Customer/Patient: Provide comprehensive Ambulance patient care in accordance with AV’s Operational Procedures, Clinical Practice Guidelines and Clinical Work Instructions;
ii. Process Improvement: Comply with all AV policies and procedures as well as legislative and legal requirements;
iii. People: Interact effectively as part of the ambulance crew within own ambulance team, with other ambulance teams and with other emergency service teams to ensure delivery of patient care is optimized;
d) Qualifications and experience: Competent standard of patient emergency care and clinical knowledge to work as part of an emergency ambulance crew. 75
[71] The AV Code of Conduct 76 applies to all staff and all categories of employees of AV.77 The AV Code of Conduct is the organisational policy that provides guidance as to the standard of behavior expected of AV employees.78
[72] The AV Code of Conduct contains the following provisions under section 3 entitled “Our Values”: 79
“3.1 Being respectful
…
We treat our colleagues, patients, families and members of the community with courtesy, respect, dignity and compassion.
…
3.3 Being accountable
We trust and empower each other to deliver on our commitments, take ownership for our work and are answerable for our actions. We hold ourselves and each other accountable for our behaviours.
Examples of acceptable behaviours that reinforce our value of Being Accountable
…
We take responsibility for when things go wrong and learn from the experience.”
[73] The AV Code of Conduct contains the following provisions under section 4 entitled “Our Professional Conduct and Ethical Behaviour”: 80
“4.2 Treating others with dignity and respect, embracing diversity and creating a harassment free workplace
…
It is your responsibility to:
Treat all people you deal with through your work at AV with courtesy and respect at all times”
[74] Ms Hay was cross-examined on provisions of the Position Description. 81 Ms Hay accepted that the provisions of the Position Description set out above, other than those in relation to people and qualifications and experience, which were not expressly put to her, were requirements of her in her role as a MICA Paramedic. Ms Hay was also cross-examined on the AV Code of Conduct and agreed that the provisions of the AV Code of Conduct she was taken to generally reflected what was required of her as a MICA Paramedic.82 She agreed that she had been provided with a copy of the AV Code of Conduct,83 she understood it84 and she was required to comply with it.85
[75] Accordingly, I find that the Position Description and the AV Code of Conduct applied to Ms Hay’s employment as a MICA Paramedic with AV. I accept that the Code sets out standards of conduct or behaviours required of Ms Hay as a MICA Paramedic. I also accept that the Position Description sets out the core competencies and deliverables of a MICA Paramedic. However, it does by way of general statement and obligation and does not enunciate what specifically is required to discharge those competencies and deliverables. I consider nothing unusual in this and for it to be entirely consistent with the purpose of a position description. I consider there to be a degree of unreality to Ms Hay’s submission that as a Paramedic of approximately 20 years and a long serving MICA Paramedic she is unaware of the requirements or expectations of her as a MICA Paramedic and scene leader on 2 October 2017. However, I consider that the answer to what was required of Ms Hay to discharge the competencies and deliverables of a MICA Paramedic and scene leader is to be found in the evidence of Mr Wakeling, Mr Cudini, Mr Stephenson and Professor Bernard. I prefer their evidence over that of Dr Flanagan for the reasons set out earlier.
[76] As set out above, Crew 1, being Ms Mercer and Ms Brennan, were dispatched first. Before arriving at the scene, Crew 1 were advised that the patient had hanged himself but had been cut down and was in cardiac arrest. Crew 1 were also informed that the patient was young. 86
[77] Upon arrival at the scene, Lachlan was lying on his back, outside in a patio area where he had been cut down by his family. 87 The area was poorly lit and light was being provided by a bystander holding a torch.88 Mr Jorgensen and a neighbour were performing external cardiac compressions (ECC).89 Lachlan presented in cardiac arrest, with no spontaneous respiratory effort, no palpable carotid pulse, cool, cyanotic, temperature of 34.9°C and with an obvious ligature mark around his neck.90 Ms Mercer went to Lachlan’s right hand side to attach the Zoll and set up an intravenous line. Ms Brennan went to Lachlan’s airway.91 Mr Jorgensen and others continued ECC.92 Ms Mercer attached the Zoll, measured Lachlan’s temperature and checked for a carotid pulse.93 Ms Mercer then gave a sitrep (a status update to other attending crews), gained IV access and administered adrenaline.94 The first attending crew identified Lachlan as being asystole with 10 – 20 minutes cardiac downtime.95 It is uncontested that the Cudini Report established that Lachlan was not in asystole when Crew 1 arrived and that Lachlan’s cardiac rhythm was, in fact, sinus bradycardia. It is also uncontested that in the sitrep given by Ms Mercer to other attending crews she said that Lachlan’s heart rhythm was asystole. The second crew also identified Lachlan as being in asystole on their arrival.96 Ms Brennan was having difficulty clearing Lachlan’s airway due to vomit in the airway. Lachlan was rolled on to his side to manually clear his airway and Ms Brennan also used suction to clear the airway. Ms Brennan was not able to open Lachlan’s jaw to insert a laryngeal mask airway (LMA) and subsequently ventilated Lachlan using a bag valve mask and oropharyngeal airway.97 During this time Mrs Jorgensen (Lachlan’s mother) advised Crew 1 that she had seen Lachlan walk onto the patio area at around 20.17, about 20 minutes before the 000 call was made. 98
[78] Upon the arrival of Crew 2, being Mr Snow and Ms Pemberton, Ms Mercer advised them that the cardiac downtime was about 20 minutes, Lachlan had been in asystole when Crew 1 arrived and was cold. 99 Asystole was present on the next pulse check.100 Mr Snow took over the role of scene leader and determined to move Lachlan into the adjacent garage where the lighting was better.101 Mr Snow then went to Lachlan’s head. Lachlan was cyanosed, being a blueish-black colour in the face and mucous membranes. There was vomit overflowing from his mouth and nostrils.102 Mr Snow suctioned approximately 280 ml of vomit from Lachlan’s airway and swept and suctioned solid matter from the back of Lachlan’s throat.103 Mr Snow used forceps to remove pieces of solid matter from Lachlan’s vocal chords.104 Mr Snow inserted an iGel, connected capnography and started ventilating Lachlan.105 Mr Snow and Ms Pemberton continued to manage Lachlan’s airway and ECC. Following the airway interventions administered by Crew 2, Lachlan’s colour changed from blue/black to light pink,106 his ETCO2 levels were increasing107 and there were changes to Lachlan’s ECG activity.108
[79] In her final written closing submissions Ms Hay says that the above indicates that by the time that the iGel was inserted, Lachlan had been without oxygen for at least 20 minutes, from 20:36 to 20:56, but that it could have been significantly longer. That Lachlan may have been without oxygen for a significantly longer period is supported, she says, by the evidence of Ms Mercer and Ms Brennan that on arrival Lachlan was cyanosed and cool, with a temperature of 34.9°C, which she says is significantly below normal. 109 That submission must be rejected. Firstly, no expert or other evidence was led by Ms Hay as to Lachlan’s actual temperature or body temperature more generally. Secondly, Mr Snow’s evidence was that a temperature of 34.9°C was 1.1°C below normal.110 Ms Mercer’s evidence was that there is a normal range for body temperature111 and that 34.9°C was “OK”112 and “wasn’t terrible”.113 Further, her evidence was that the resuscitation protocol did not change until the patient’s temperature was below 30°C.114 Accordingly, there is no evidence to support the assertion that a temperature of 34.9°C is “significantly below normal” such that it might be concluded on that basis that Lachlan had been without oxygen for a longer period of time. Thirdly, Ms Hay submitted that the “Glaister equation”, which she submits is a formula for calculating the rate at which a human body cools, indicates a period of 2.4 hours since arrest.115 Ms Hay led no expert or other evidence as to the Glaister equation or the effect of cooling on the human body. Accordingly, there is no evidence before the Commission upon which it might be concluded on the basis of the Glaister equation that Lachlan may have been without oxygen for a significantly longer time than 20 minutes.
[80] At 20.56.41, soon after the airway interventions were completed, the MICA 24 crew arrived at the scene and were with Lachlan at 20.59.39. Much of what then occurred on the evening of 2 October 2019 is in dispute. However, it is uncontested that upon arrival at the scene Ms Hay was the most experienced/senior Paramedic at the scene 116 and the scene leader.117
[81] Mr Wakeling’s evidence was that as the scene leader and most senior Paramedic on the scene Ms Hay was responsible for managing the scene. She was responsible for allocating tasks and the clinical care of the patient. 118 The MICA Paramedics on scene dictate the patient’s management, assessment119 and care.120 One of the senior MICA Paramedics will take the lead, they oversee and dictate patient care and make decisions.121 As scene leader Ms Hay had a clinical duty to continually ascertain the objective data during Lachlan’s treatment including heart rhythm, heart rate, ETCO2 levels and pigmentation data (as did all attending Paramedics).122 Mr Wakeling’s evidence was that the “buck rests” with the MICA Paramedic in charge of the scene.123 In cross-examination Mr Wakeling’s evidence was that in decision making, all attending Paramedics have a say but the scene leader generally takes account of all the information and dictates the decision making and patient care.124 The role of scene leader was a combination of both a leadership role and also that of being “the boss”.125
[82] Mr Cudini agreed with Mr Wakeling’s evidence that MICA Paramedics make the final decisions, dictate the patient’s management and are ultimately responsible for the patient’s management and care. His evidence was that responsibility was to be exercised in an environment where others felt able to speak up. 126
[83] Mr Stephenson’s evidence was that as the senior MICA Paramedic and scene leader Ms Hay was ultimately responsible for the care of the patient. He said that it was very well entrenched practice that the senior Paramedic is ultimately accountable. The following exchange occurred between the Bench and Mr Stephenson:
“Is this documented somewhere?---In some instances it is, but by and large no, it’s custom and practice. And as I say, it’s entrenched. It’s taught. When you are being trained as a MICA Paramedic, scene leadership and managing other paramedics at the scene is very much a focus of what we do. It’s part of our position description and, as I say, there isn’t a paramedic in Victoria who would not understand that the senior MICA Paramedic is not the person responsible.” 127
[84] His evidence was that Paramedics have always been measured and held to account in that way. There has never been a question about it. 128 The senior Paramedic “carries the can” for the decisions made at a scene.129 They assume that responsibility daily.130 He said that whilst all attending Paramedics have a responsibility to do their job properly there is always a leader. This is necessary for the proper functioning of the case and for best outcomes.131
[85] Professor Bernard’s evidence was that as scene leader and the senior clinician Ms Hay was required to take control of the scene. 132
[86] Ms Hay’s evidence was that it is standard practice for the scene leader to direct what is happening and have overall control of the scene. 133 However, she said there isn’t just one person who is in charge of everything and who dictates what occurs. A scene leader just makes clear the lines of communication.134
[87] Ms Hay does not contest that on 2 October 2017 as the most senior MICA Paramedic on scene she took a leadership role. 135 She submits that this operated in accordance with a co-operative collegiate model. She submits that nowhere is it documented that the scene leader is responsible for what occurs at a scene136 or the manner and style of leadership that is required.137 She submits that the evidence was that apart from arrangements expressly agreed between members of a crew, scene leadership was assumed according to custom and practice where superior skills and greater service were recognized and respected.
[88] Mr Wakeling, Mr Cudini and Mr Stephenson all accept that MICA leadership at a scene operates within a co-operative collegiate model. Ms Hay accepts that she was the scene leader and that as the scene leader it was her role to direct Lachlan’s treatment and care. She also accepts that as scene leader she had overall control of the scene. As set out earlier, she also accepts that the Position Description requires that she take responsibility for patient and customer satisfaction and clinical outcomes. 138 However, it is clear that she contests that as scene leader she dictated, and was ultimately responsible for, Lachlan’s management and care and the decisions made at the scene in relation to that care. On Ms Hay’s evidence, the role of scene leader is limited to making clear the lines of communication.
[89] For the reasons that follow, I reject Ms Hay’s evidence on this point. Firstly, I have already expressed my view that Ms Hay was, generally, in my opinion, an unimpressive witness and was reluctant to make concessions where they appeared warranted. This was particularly so in relation to whether she was the scene leader and the most experienced MICA Paramedic at the scene on 2 October 2017. 139 Secondly, the evidence of Mr Wakeling, Mr Cudini and Mr Stephenson is consistent. All say that the scene leader dictates care and management, is in control of the scene and is ultimately responsible for the patient’s care. The evidence of Professor Bernard is also that Ms Hay as the senior MICA Paramedic was required to take control of the scene and dictate care. I found Mr Wakeling to be a credible witness. He took responsibility for his actions on 2 October 2017 and admits they were wrong. Mr Stephenson was an extremely compelling witness who gave direct, clear, unwavering and definitive evidence. Professor Bernard and Mr Cudini were credible witnesses who gave forthright and clear evidence. Further, all four, but most particularly Mr Stephenson and Professor Bernard, have extensive experience and expertise. Thirdly, Mr Wakeling, Mr Cudini and Mr Stephenson are all practicing MICA Paramedics. Their evidence as to the responsibilities and accountabilities of a MICA Paramedic scene leader was clear and unambiguous. Fourthly, in circumstances where there are a number of attending Paramedics at a scene it seems inherently likely that someone assumes a leadership role and takes control of the scene. I consider it entirely unsurprising that with that leadership role comes leadership responsibility and accountability, notwithstanding that the leadership operates within a co-operative collegiate model. Accordingly, I accept the evidence of Mr Wakeling, Mr Cudini, Mr Stephenson and Professor Bernard over that of Ms Hay as to the responsibilities and accountabilities of a MICA Paramedic scene leader. I accept the submission that there is no documented evidence of the specific obligations of a MICA Paramedic scene leader. In my view the Position Description sets out the general obligations of all MICA Paramedics. However, given the evidence of Mr Wakeling, Mr Cudini and Mr Stephenson I do not consider that the absence of documentation indicates either an absence of obligation or a lack of clarity or knowledge of what the requirements and accountabilities of a MICA scene leader are.
[90] I therefore find that Ms Hay assumed leadership of the scene on 2 October 2017. I find that although this operated within a co-operative collegiate model, as the MICA Paramedic scene leader Ms Hay was responsible and accountable for managing the scene and directing Lachlan’s care. I find that as the scene leader she was responsible for the decisions made at the scene.
[91] It is uncontested that upon arrival Mr Wakeling went to Lachlan’s head to manage his airway and ventilation, while Ms Hay took a handover from Ms Mercer. Ms Mercer’s evidence is that she informed Ms Hay that Lachlan had been in asystole when Crew 1 arrived, and had a downtime of around 20 minutes.140 Mr Snow’s evidence was that Ms Mercer also told Ms Hay that Lachlan had been cold and blue.141 Ms Mercer in her evidence-in-chief stated that in the handover she also informed Ms Hay that there had been a difficult airway but an advanced airway had now been achieved.142 However, under cross-examination she conceded that she had no specific recollection of telling Ms Hay this. 143 Mr Snow also gave evidence that he did not recall Ms Mercer providing this information to Ms Hay in the handover and, as such, he then added what Crew 2 had done.144 Mr Snow gave evidence that he also said aloud that Lachlan was “pinking up” and had vomited and further that Lachlan had had a soiled airway and a copious amount of vomit had been suctioned.145 He says he pointed this out to MICA 24 when they arrived.146 Under cross-examination Mr Snow’s evidence was that he did not specifically direct these comments to Ms Hay.147 However, his evidence was that they were said aloud and Ms Hay was in very close proximity to him.148 Mr Snow’s evidence in cross-examination was also that he told the whole scene that Lachlan’s airway had been cleared and he pointed to the suction bottle which was full of vomit.149 Mr Snow’s evidence was that suction equipment and the evidence of ventilation related activities was conspicuous and overt.150 Further, he denied that evidence of airway problems had been hidden.151 Mr Snow agreed in cross-examination that in the incident report he prepared for the Cudini Report he stated he did not recall the particulars of the handover152 and, further, that the handover was not included in his record of interview prepared by the Investigator but details of the handover were in his statement before the Commission.153 In his incident report Mr Snow says “I do not recall the handover particulars of the case that were provided to Louise by Kelly or others.” Mr Snow’s evidence was that the question he was responding to in the incident report was in relation to whether Ms Mercer informed Ms Hay at the handover about the airway difficulties Crew 1 had encountered.154 As to his record of interview in which he states “Kelly did a brief handover to Louise and Jarrod took over the airway”, his evidence was that it was written by the Investigator based on their interview, much of which went to assisting the Investigator to understand the equipment used at the scene and medical terminology, and was then provided to him to confirm and sign.155 His evidence under cross-examination as to the additional matters regarding the handover included in his witness statement was as follows:
“Mr Snow, did anyone require – did anyone propose to you that you make the further elaboration that is in your witness statement?
Nobody at all. My first statement was I didn't know the extras. I don't think any discussion was provided by the first crew as to explain their inability to clear the airway. I have always been across that Kelly provided the handover she did. It was the same handover I received. I just have expressed what that was to me. That's the only bit I know. That hasn't changed throughout.” 156
[92] Mr Snow gave evidence that the ePCR he completed for Lachlan’s Case was very basic as he didn’t have any of the data from the Zoll to reference. 157 Under cross-examination Mr Snow agreed that the ePCR completed by him on behalf of Crew 2 at the conclusion of Lachlan’s Case did not include any notation regarding any clinical interventions undertaken by Crew 2,158 including no notation of airway intervention159 or that Lachlan was “pinking up”.160 Mr Snow conceded that his ePCR was “bald”161 and given his time again he would populate it more.162 Under cross-examination his explanation for the lack of detail in Crew 2’s ePCR was that he noted on the ePCR that the initial and on-going management of the case was by Crew 1, as the first attending crew163 and the crew that was there for the duration of the case.164 He was relying on Crew 1 to complete the ePCR for Lachlan’s Case.165 His understanding was that Crew 1 would complete the full ePCR for attending ALS crews and MICA 24 would complete the ePCR for the MICA 24 crew.166 He gave the following further evidence regarding Crew 2’s ePCR:
“I was relying on one ALS ePCR to do the ALS management and the MICA ePCR to do the MICA management. I freed myself up from the scene. I didn't print out all the materials and the times and the rhythms. I have no ability to write what the first crew did for 11 minutes. I was there for four minutes in between. I haven't recorded every event. I have written that for VACAR to refer to the Riddels Creek.” 167
“I think the guideline is from 2010 and I think the direction is to make us available, that someone writes a proper PCR and that doesn't have to be every crew at the scene. And I relied on and I left it to them, but I freed myself up to give them a chop out, so that they didn't have to go to another job. And I did a job in Gisborne for them. I admit that my PCR - given my time again, I would populate it more, but I know that that exists, because I was interviewed by a CSO who didn't show me until after that - and the comments I made to him about the rhythms and the changes are evidenced on paper.” 168
“…it's my understanding that a patient care record must be attended for every patient that's attended, but not necessarily every crew that attends has to write the PCR.” 169
[93] As to Crew 1’s ePCR, Ms Mercer’s evidence was that she prepared the ePCR but that it was incomplete. 170 Ms Mercer’s evidence was that she partially completed the ePCR for Lachlan’s Case and then Crew 2 was called to another job.171 Following this, Crew 2 went to bed and her intention was to complete the ePCR prior to the end of her shift at 5 pm the next day.172 This did not occur as Crew 2 took special leave, following discussing Lachlan’s Case with the duty psychologist.173 She agreed under cross-examination that the ePCR for Lachlan’s Case should have been completed, most particularly because Lachlan’s Case involved a cardiac arrest.174
[94] In relation to ePCRs, Mr Stephenson’s evidence was that Lachlan’s Case was poorly documented by all three attending crews 175 and that relevant clinical observations throughout Lachlan’s case should have been included in the ePCRs.176 He gave further evidence that it was accepted practice within AV for the first crew on scene to record the detail of the care provided until the arrival of the MICA 24 crew. On arrival, the MICA 24 crew assume the care of the patient and will document care given after that time. If there is another crew attending, such as Crew 2 and Mr Snow in Lachlan’s Case, they will not prepare an ePCR with any detail and will usually prepare an ePCR which simply refers to the other ePCRs.177 Mr Stephenson also gave evidence that it is standard practice that verbalisation occurs during treatment of a patient. He said that every treatment is verbalised and every important check is verbalised.178
[95] Mr Wakeling gave evidence that he was not made verbally aware of difficulties with airway management 179 but there was evidence that there had been such difficulties.180 His evidence was that there was a large amount of vomit in Lachlan’s airway which he suctioned,181 that it was quite obvious and he noticed it as soon as he went to Lachlan’s head, even with the LMA in situ,182 he told Ms Hay he would intubate because Lachlan’s airway had been “an issue”183 and based on his observations at the scene it was apparent to him that the first two ALS crews had experienced difficulties in clearing Lachlan’s airway.184
[96] Ms Hay gave evidence that upon arrival at the scene she was given a brief hand over by Ms Mercer 185 and that no one told her there had been any problems clearing Lachlan’s airway.186 Mr Snow did not mention the airway difficulty187 or the improvement in Lachlan’s colour.188 She gave further evidence that she couldn’t assess these things independently as Lachlan had been moved from where his airway was cleared. She could not see any suction equipment, nor smell any vomit or see any vomit on Lachlan’s face. As such, there was nothing to indicate to her that there was more regarding Lachlan’s condition that had been “withheld” from her.189 Under cross-examination, in relation to the airway difficulties encountered by the two ALS crews Ms Hay gave the following evidence:
“…Significant and important information was withheld from me.” 190
“If someone’s going to hide information there’s no suction equipment, there’s no vomit on the face, there’s no mention of anything, I can’t … 191.
[97] In response to this, the follow exchange occurred between Counsel for AV and Ms Hay:
“Ms Hay, no one hid, in the way you used that word, no one hid anything from you on that evening. Do you accept that no one hid anything from you?---I can't speculate. There was no evidence of it but an activity had occurred. There was no evidence of it so all the evidence of it was hidden from me. I'm not trying to imply anything malicious or negligent - - -
No, no, I just want to take you back, Ms Hay, because you're an articulate woman and I've asked you a lot of questions over five hours or so and I'm not patronising I promise you, but you're articulate - you use language carefully. You just said "hide from me"?---Yes, hide.
That's a very deliberate use of that word, the idea of someone concealing, to hide something, to not show you something deliberately, to hide. I'm putting to you, no one hid anything from you that night at that scene, did they?---There was no visible suction equipment, there was no evidence of vomit in the patient's mouth and nose. He had been cleared up.
Do you maintain - - -?---Hidden - I understand that hidden is a dreadful pejorative and accusatory word but if you tidy away all the evidence of an activity that's occurred, you are hiding it and I know that's - - -
It's pejorative, you're actually correct. As I said your use and facility with language is very good and you're absolutely correct, it's pejorative. It's a very serious allegation because you are alleging here, on the record under oath, and it's probably an opinion more than anything, but you're alleging that people, colleagues, Ambulance Victoria colleagues working with you on that night consciously and deliberately failed to disclose, obscured or, as you said, hid away from you relevant information. That's what you're putting, aren't you?---I don't know if it was conscious or if they wanted - I can't - - -
But to hide is deliberate, is it not? To hide something?---It's a deliberate action, yes.
That's the language you used, isn't it?---Yes, I wish I hadn't. Yes. It - the scene was tidied up, it was cleared away, there was no evidence of what had occurred prior to my arrival and no mention of - made of it after I had arrived.
You accused the Ambulance Victoria paramedics, with whom you were working of hiding, hiding something from you?---Yes. That's terrible.” 192
[98] In re-examination Ms Hay gave the following evidence:
“I understand Mr Harrington's point that it's quite a strong term, but there ought to have been some evidence of 15 minutes of failed airway management that I would be able to walk in and find. I would expect there to be some evidence, the smell of it is quite overpoweringly strong that there was no evidence of any - as I've already said, I couldn't see any suction equipment or overflowing suction bags or dirty towels or suction equipment and no one verbalised, "We've had a bit of trouble with the airway", and so when I used the word "hide" that this 15 minute activity had been so well cleaned up that I was - because there was no evidence that would've assisted me to even guess that they've had problems, and that's why I used the word "hide".” 193
[99] In cross-examination she gave evidence that Ms Mercer and Mr Snow were in close proximity to each other and that Ms Mercer spoke over Mr Snow to give her the handover. 194
[100] Ms Hay acknowledged that the ePCR she prepared for MICA 24 for Lachlan’s Case lacked “some detail”. 195 Her evidence was that this was a result of MICA 24 being called to another job almost immediately and not completing the ePCR until some two and one half hours after leaving the scene.196 Mr Stephenson’s197 and Mr Cudini’s198 evidence was that the ePCR prepared by Ms Hay lacked significant detail, not merely some detail.
[101] Ms Hay submitted that what was relayed to her about the difficulties that had been experienced with Lachlan’s airway is a matter of critical importance. 199 She submitted that her evidence that she was not made aware of the difficulties that had been encountered with managing Lachlan’s airway before the arrival of MICA 24 ought be accepted.200 She submits that the only direct evidence to counter her testimony that she was not informed about the airway management difficulties are the “conflicting stories” of Ms Mercer and Mr Snow. She submits that neither Mr Snow nor Ms Mercer said anything about the matter to Mr Cudini during his review, nor to the Investigator201 and further nothing in any of the ePCRs indicates that Ms Hay was informed of the airway difficulties.202 None of the other attending Paramedics said anything about Ms Hay being informed of airway difficulties in their incident reports, record of interview or witness statements, although both Ms Pemberton and Ms Brennan have recollections of Mr Snow making other comments to Ms Hay during the resuscitation about changes in Lachlan’s heart rhythm and ETCO2 levels.203
[102] It will be apparent from the above that, contrary to Ms Hay’s submission, in addition to Mr Snow and Ms Mercer, Mr Wakeling also gave evidence on this issue. It is uncontested that prior to arrival at the scene MICA 24 was not advised that there had been any difficulties with Lachlan’s airway. Further, notwithstanding her assertion to the contrary in her evidence-in-chief, under cross-examination Ms Mercer conceded that while she believed she told Ms Hay of the airway difficulties in the handover, she had no specific recollection of doing so. This is consistent with Mr Snow’s evidence. Accordingly, I find that Ms Mercer did not inform Ms Hay at handover of Lachlan’s airway difficulties. I therefore reject Ms Hay’s submission that Mr Snow and Ms Mercer have conflicting stories.
[103] As to whether Ms Hay was informed by Mr Snow of Lachlan’s airway difficulties, I prefer the evidence of Mr Snow over that of Ms Hay. For the reasons that follow, I consider Ms Hay’s evidence as to this matter to be unreliable. Firstly, Mr Snow’s uncontested and corroborated evidence is that he determined to move Lachlan into the garage and that he administered airway management, including suctioning 280 ml of vomit from Lachlan’s airway and removing solid matter from Lachlan’s vocal cords using forceps. At the very least, this requires suctioning equipment to be at the treatment scene when Ms Hay arrived, noting that the MICA 24 crew arrived on scene soon after airway interventions were completed. Secondly, I do not accept Ms Hay’s assertion that she could not assess whether there had been airway difficulties because Lachlan had been moved from where his airway was cleared. While Lachlan’s airway was initially cleared while he was outside, further significant airway clearance was undertaken by Mr Snow, with Ms Pemberton, using suctioning equipment and forceps, following Lachlan being moved to the garage. Thirdly, it therefore follows that I do not accept Ms Hay’s evidence that there was no visible suctioning equipment. Fourthly, I consider Ms Hay’s assertion that the evidence of airway difficulties had been hidden and withheld from her to be implausible. It is, in my opinion, entirely implausible to suggest that attending Paramedics at such a scene, in active resuscitation, would take time to “hide” evidence of treatment given or activities undertaken or would intentionally withhold relevant information. Fifthly, Mr Wakeling’s evidence that he told Ms Hay he would intubate because Lachlan’s airway had been an issue was not challenged, nor was his evidence that it was apparent that the ALS crews had experienced airway difficulties. Finally, when asked by the Bench to describe the physical scene when she arrived, Ms Hay could not recall whether there was equipment visible other than a drug bag and the Zoll. 204 In such circumstances, a positive assertion that there was no suction equipment evident at the scene cannot be accepted. In light of these matters, I consider Ms Hay’s evidence as to what occurred during the handover to be unreliable and I prefer the evidence of Mr Snow. Further, I find that there was evidence of the airway management issues at the scene when MICA 24 arrived.
[104] As to the differences between Mr Snow’s witness statement prepared for these proceedings and the content of his incident report and his record of interview, firstly, I do not find the content of those documents to be in conflict. In my opinion, on its face, the statement in his incident report is directed to what Ms Hay was told by Ms Mercer and others. It does not go to what Mr Snow may or may not have said. This, in my view, is consistent with Mr Snow’s evidence that he was responding to a question as to what Ms Mercer told Ms Hay. He has at all times maintained that Ms Mercer did not inform Ms Hay about the difficulties with Lachlan’s airways at handover. The statement in his record of interview does no more than say that Ms Mercer provided a brief handover to Ms Hay. As such, I do not consider it conflicts with his evidence included in his witness statement. I accept, however, that it does not include the detail of what Mr Snow now says he said to Ms Hay. Mr Snow’s evidence was that he did not draft the record of interview. It was prepared by the Investigator, he confirmed what was provided to him was correct and he signed it. I accept that evidence. The record of interview is therefore not Mr Snow’s own recollection of the events on 2 October 2017 and necessarily includes only that which the Investigator included. For my part, I find nothing curious in there being some differences between the content of these three documents, given the different purposes for which they were created and the differing manner of their creation. In particular, I find nothing unusual in a witness statement prepared in the context of legal proceedings being more fulsome. Indeed, I would find it more curious if all three documents had precisely the same content. Accordingly, I reject Ms Hay’s submission that Mr Snow has “conflicting stories”.
[105] Finally, Ms Hay says that the ePCRs prepared in Lachlan’s Case are the most contemporaneous record of the events of 2 October 2017 and, as such, places considerable weight on the fact that nothing is recorded in the ePCRs as to her being informed about Lachlan’s airway difficulties. It is accepted by both Mr Snow and Ms Mercer that the ePCR prepared by them in Lachlan’s Case was either incomplete or lacking in detail. Ms Hay also accepted that the ePCR she prepared lacked detail. Mr Stephenson’s evidence on this matter confirms that the ePCRs for all three attending crews were poor and that clinical detail that ought have been included was not. Mr Snow’s evidence of his understanding that Crew 1 would complete a comprehensive ePCR and that it was sufficient for Crew 2 to refer to Crew 1’s ePCR is consistent with Mr Stephenson’s evidence regarding this issue. I therefore accept Mr Snow’s explanation as to the absence of detail in Crew 2’s ePCR, including the absence of information regarding airway intervention and changes in Lachlan’s colour. Notably, both Ms Hay and Ms Mercer explain the absence of detail in their ePCRs due to attending other cases shortly after leaving the scene. It is apparent from the evidence that the completion of ePCRs is not, perhaps unsurprisingly, prioritised over attendance to calls. I accept that this, and in the case of Ms Mercer, unplanned special leave, resulted in Crew 2 and MICA 24 ePCRs being incomplete. I also accept Mr Snow’s evidence as to the manner in which the ePCR is populated (to which I refer later in this decision). In these circumstances, I find that the ePCRs prepared in Lachlan’s Case are unreliable and do not accurately record the events of 2 October 2017. I therefore place no weight on the absence of information about a particular matter in any of the ePCRs. Accordingly, I consider nothing turns on either Crew 1 or Crew 2’s failure to include information regarding airway intervention or that Lachlan was “pinking up” in their ePCRs.
[106] I therefore accept Mr Snow’s evidence over that of Ms Hay and find that during the handover given to Ms Hay, Mr Snow did make statements that there had been difficulties with Lachlan’s airway and that Lachlan was “pinking up”. In making this finding I have taken account of the fact that Mr Snow’s evidence is that he did not say these matters directly to Ms Hay, rather he said them out aloud. On Ms Hay’s own evidence Ms Mercer and Mr Snow were in close proximity and Ms Mercer spoke over Mr Snow to give her handover to Ms Hay. This implies that Mr Snow was closer to Ms Hay than Ms Mercer. Regardless, Ms Hay heard Ms Mercer’s handover and given the close proximity of Ms Mercer and Mr Snow, it is difficult to see how she would also not have heard Mr Snow. Further, Mr Stephenson’s evidence is that verbalisation during treatment is standard practice.
[107] It is, ultimately, uncontested that on 2 October 2017 Ms Hay was the scene leader and the most senior Paramedic in attendance. Ms Hay’s evidence was that it was very important to thoroughly and compassionately assess what was happening at the scene. 205 Her evidence was that she looked and assessed Lachlan.206 Her evidence was that assessment was a full and complete assessment.207 Ms Hay’s evidence was that Lachlan had fixed dilated pupils, a temperature of 34°C, a blue/black face, peripheral cyanosis and asystole on the Zoll.208 Ms Hay’s evidence was that she did not crouch down on the ground to touch Lachlan.209 This is consistent with the evidence of Mr Snow,210 Ms Mercer,211 Ms Brennan212 and Ms Pemberton.213 Mr Snow’s evidence was also that Ms Hay did not assist in the clinical care of Lachlan or closely observe him.214 Ms Hay’s evidence was that it is standard practice for the scene leader to direct what is happening and have overall control of the scene. It would not be normal practice, unless immediately necessary, for a scene leader to be engaged on the ground.215 In cross-examination she agreed with the proposition that as the scene leader it was her role to obtain clinical and other relevant information for herself to reach an informed decision about how Lachlan was to receive treatment.216 The following exchange occurred between Ms Hay and counsel for AV:
“Ms Hay, I want to quote you back the evidence I was presented with, do you agree that as the scene leader, you have to dig in and obtain the clinical and any other relevant information for yourself to reach an informed opinion about how this patient is going to receive treatment under you as the scene leader, do you accept that proposition?---Yes.
You failed on 2 October 2017, in that first three minutes to really dig in and do the detective work, didn't you?---I asked Kelly Mercer for a further handover. Her original - - -
The answer is yes or no?---I didn't fail.
Sorry, you didn't fail?---I didn't fail.
You didn't fail. So, it was someone else's fault, was it?---I asked Kelly Mercer for a handover and any further information from her original handover on the radio when she arrived on scene.
And is that enough for a senior MICA paramedic who is the scene leader, someone who's on site, who's competent, Ms Mercer telling you something, is that it, you don't do any more than that?---I don't ask crews, "Is there anything you're not telling me." I don't ask crews if they've withheld anything from me. I ask for a handover.
Yes, you got a handover. Now, what next, what more do you have to do after your handover when you're the scene leader?---I looked and I assessed and I couldn't - - -
What did you look at?---[Lachlan].
And there were five paramedics around [Lachlan], wasn't there?---Yes.
There was a Zoll monitor in the corner or nearby as well?---Yes. I (indistinct) the monitor, it was there, [Lachlan] was there, the LMA was in situ, I'd been told it was ventilating well. There was nothing to make me think that anything else had gone on.” 217
[108] Ms Hay says she looked at the Zoll when she arrived at 20.58, 20.59, 21.00 and 21.02. On each occasion is showed asystole. 218 The Treatment Summary Report demonstrates the following in relation to Lachlan’s cardiac activity at around that time:
• 20:58:27 HR Low alarm --- bpm
• 20:58:48 HR Low alarm ---bpm
• 20:59:51 HR Low alarm 35 bpm
• 21:00:37 HR Low alarm 25 bpm
• 21:01:54 HR High alarm 198 bpm
• 21:02:24 HR Low alarm ---- bpm
• 21.02:38 HR High alarm 122 bpm
[109] Mr Wakeling’s evidence was that as the most senior Paramedic on the scene Ms Hay was responsible for managing the scene. She was responsible for allocating tasks and the clinical care of the patient. 219 The MICA Paramedics on scene dictate the patient’s management, assessment220 and care.221 One of the senior MICA Paramedics will take the lead, they oversee and dictate patient care and make decisions.222
[110] Mr Cudini’s evidence was that Ms Hay engaged in minimum clinical practice at Lachlan’s Case and this is highly unusual for a senior MICA Paramedic and scene leader. 223 In his experience, it is very unusual for a MICA Paramedic, let alone the senior clinician at the scene, to not thoroughly assess the patient and discuss clinical care plans with a fellow MICA Paramedic and other Paramedics as appropriate.224 Ms Hay had a duty to make her own independent, objective assessment of the clinical factors before her.225 It is standard practice to re-assess and to make an independent, objective assessment.226
[111] Mr Stephenson’s evidence was that as the senior MICA Paramedic and team leader Ms Hay was responsible for the care of the patient and she takes over the running of the case from the other Paramedics. 227 At the scene it was her role to make observations of Lachlan herself and repeat her observations, usually out aloud, every time she made a treatment decision. He gave further evidence that a MICA Paramedic should never blindly accept another Paramedics opinion about the presenting objective data. The MICA Paramedic should always check this data for themselves.228 Mr Stephenson’s evidence was that it was Ms Hay’s role as the senior MICA Paramedic on scene to walk into the scene, ask the ALS Paramedics what they had before them, assess what was handed over in relation to objective clinical data (including ECG, ETCO2 levels, temperature), set a treatment plan and ask where the family was so someone could bring them to the treatment area where they could be briefed and included. He said his practice is to sit or kneel down by the Zoll and take control of reading the rhythms and run the timing of the arrest so that drugs and defibrillations occur in a timely sequence. The senior MICA Paramedic would take over the rhythm interpretation and supervise the other Paramedic in their practice. He said this would be the norm.229
[112] Professor Bernard’s evidence was that Ms Hay was required to receive a brief history from the family and first responding Paramedics of what had occurred before her arrival, place herself close to the patient so that she could ensure that all the necessary tasks allocated to individual Paramedics were performed, ensure that appropriate CPR was being performed including chest compressions at the correct rate and depth and oxygenation and ventilation were satisfactory. She was required to assess the cardiac rhythm on the monitor every two minutes with a brief pause in chest compressions, ensuring a pulse check was performed where a cardiac rhythm was present on the monitor, ensure an IV was placed and that adrenaline was administered every four minutes. 230
[113] Ms Hay submitted that she made an adequate and proper assessment of the scene and Lachlan’s needs. She submitted that she is entitled to rely upon the information provided to her at handover by another experienced Paramedic. She says that AV have not produced any document which sets out the steps she was required to take. 231
[114] On her own evidence, Ms Hay’s assessment of Lachlan was limited to visually assessing Lachlan’s presentation upon arrival, checking the Zoll and receiving the information Ms Mercer provided to her in the handover. I therefore find that Ms Hay did not closely observe Lachlan in order to assess his condition. It is uncontested that Ms Mercer and Ms Brennan incorrectly identified Lachlan’s presenting rhythm as asystole and that this incorrect information was given to Ms Hay at handover. Further, I accept, given the variable beats per minute recorded by the Zoll, that on the occasions that Ms Hay looked at the Zoll around the time of MICA 24’s arrival at the scene it may have showed asystole. However, I find that between 20:58:27 and 21:02:38 the Zoll also demonstrated cardiac activity at varying points in time. Under cross-examination Ms Hay agreed that as the scene leader and senior MICA Paramedic at the scene she was required to undertake her own analysis of Lachlan’s condition and make her own observations. This is consistent with the evidence given by Mr Wakeling, Mr Cudini and Mr Stephenson. Accordingly, Ms Hay’s submissions that she is entitled to rely upon the information given to her at handover must, on her own evidence, be rejected. Further, whilst AV did not produce a specific document that identified what was required of Ms Hay in undertaking an initial assessment, Ms Hay agrees she was required to undertake her own analysis of Lachlan’s condition and make her own observations. As such, she is aware of “the steps” that are required of her as the scene leader and senior MICA Paramedic on scene. There is no evidence that Ms Hay did anything more than look at the Zoll on four occasions, visually observe Lachlan (although not closely) and obtain the handover. There is no evidence that she made any independent assessment of the information relayed to her by Ms Mercer or undertook any analysis of Lachlan’s condition or assessed the objective clinical data. Most notably, she failed to identify that the Zoll also identified cardiac activity in the relevant period. Accordingly, I find that Ms Hay did not undertake her own independent assessment of Lachlan’s condition or make her own observations and that as scene leader and the most senior MICA Paramedic in attendance she was required to do so. Further, I find that she was aware that this was required of her as scene leader.
[115] Intubation can only be performed by a MICA Paramedic. It is uncontested that Lachlan was not intubated.
[116] Mr Wakeling’s evidence was that within five minutes of arrival at the scene he began to set up for intubation. Mr Wakeling says it was clear to him that Lachlan needed to be intubated. He says he said to Ms Hay words to the effect of “I need to intubate” in response to which she said words to the effect of “I don’t think you need to do that.” 232 She said this as she began to walk away towards the family.233 Mr Wakeling’s evidence is that he made the decision not to intubate Lachlan. He says that he now knows that decision was wrong234 and that he should have intubated.235 Intubation was the optimal approach.236 His further evidence was that he did not question Ms Hay’s comment at the time as he suspects he considered Ms Hay’s position was not unreasonable at the time.237 None of Mr Wakeling’s evidence on this matter was challenged in cross-examination. Mr Snow’s evidence, consistent with Mr Wakeling’s, was that Mr Wakeling initially set up to intubate but intubation did not occur. He says Mr Wakeling indicated to him that tape for the LMA would not be needed as Lachlan would be intubated.238 Mr Snow gave evidence that he was aware that Mr Wakeling and Ms Hay spoke about intubation but was unsure of whether Ms Hay indicated that intubation was not required at that point or not at all.239 Ms Pemberton also gave evidence that Mr Wakeling initially set up to intubate.240
[117] Ms Hay’s evidence is that she did not see Mr Wakeling setting up to intubate but she has no dispute with that. 241 Ms Hay’s evidence is that intubation was not undertaken because there was no apparent need for urgent intubation.242 Ms Hay says Mr Wakeling informed her he thought intubation was necessary after she returned from speaking to the family and that this was overtaken by the family’s request to cease resuscitation and the decision to cease made.243 Ms Hay denies making the statement alleged by Mr Wakeling.244
[118] AV submits that Ms Hay was the driving force in Mr Wakeling’s decision not to intubate and that the Commission ought find that Ms Hay directed or encouraged Mr Wakeling to not proceed with intubation. 245 Ms Hay submits that she neither directed nor encouraged Mr Wakeling not to proceed with intubation. She submits that Mr Wakeling’s own evidence is that he made that decision.246
[119] As to what was said, I prefer the evidence of Mr Wakeling on this point for the following reasons. Firstly, I consider Mr Wakeling to be a credible witness. He accepted responsibility for the decision not to intubate and also conceded that, upon reflection, that decision was wrong. Secondly, Mr Wakeling’s evidence that he set up for intubation is supported by both Mr Snow and Ms Pemberton. Finally, Mr Wakeling’s evidence was not challenged in cross-examination. Accordingly, I find that Ms Hay did make the comments alleged by Mr Wakeling. However, Mr Wakeling’s own evidence is that he made the decision not to intubate. On that basis, AV’s submission that Ms Hay directed Mr Wakeling not to proceed with intubation must be rejected. Further, Mr Wakeling says he did not question Ms Hay’s comment as he suspects he considered her position not unreasonable at the time. In light of this, I also consider that AV’s submission that Ms Hay encouraged Mr Wakeling not to intubate must also be rejected. Accordingly, I find that Ms Hay did not direct or encourage Mr Wakeling not to intubate Lachlan.
[120] In cross-examination Ms Hay gave evidence that after the handover, but before she went to speak with Lachlan’s family, at around 21.00, she had formed the view that Lachlan had died 247 and that there were no compelling reasons to continue resuscitation.248 Ms Hay agreed in cross-examination that she had formed the view that Lachlan had died after she received the handover from Ms Mercer and therefore within three minutes of arriving at the scene.249 She gave evidence that at this time “the picture was very clear to me.”250 Accordingly, I find that before speaking with Mr and Mrs Jorgensen and within three minutes of arriving at the scene Ms Hay had formed the view that Lachlan was dead and that there were no compelling reasons to continue resuscitation.
[121] In her final written closing submissions Ms Hay appears now to concede that her initial assessment that Lachlan had died was mistaken but that it was reasonably open to her on the information available to her at the time. 251 I reject that submission. Firstly, it is inconsistent with Ms Hay’s evidence before the Commission. Her evidence, as set out above, was that it was “very clear” to her at 21.00 that Lachlan had died. Further, under cross-examination she maintained her position that Lachlan was dead252 saying:
“…I still think he was dead and I have- I’m sorry, I haven’t changed my mind. He was dead.” 253
[122] Accordingly, at no point in her evidence has Ms Hay accepted that her initial assessment of Lachlan was mistaken. Secondly, under cross-examination Mr Stephenson was asked if in circumstances where a MICA Paramedic arrives on scene and is told at handover that the patient is asystole, cold and profoundly cyanosed, with a prolonged downtime of 10 – 20 minutes, it was understandable that a MICA Paramedic would come to the conclusion that the patient was dead. Mr Stephenson’s evidence, which I accept, was that it was “categorically not” understandable that a MICA Paramedic would form such a view at that time. 254 The following exchange occurred between Mr Hull and Mr Stephenson:
“No, I didn’t ask you what you would assess. I asked you as an expert whether it was understandable that a MICA might make that assessment? ---I repeat I do not think it’s understandable. No, it’s not understandable.” 255
“Why is that the case? Why is it not?---Every patient is different. There are many patients who will survive with downtimes of that long and in this case we're talking about a 15 year old boy and in the case of children we always extend a much great - much greater attempts at resuscitation in this circumstance than we would in an adult, and as every MICA Paramedic in this state would be aware, sometimes we undertake care in difficult circumstances in the hope of producing an unexpected survivor. My expectation of MICA Paramedics in this state would be that they would start the resuscitation with a full - in a full MICA capacity to try and produce a survivor that might not otherwise be expected. So to that extent I am not sure that he's dead at this time and I certainly wouldn't be declaring him dead at this time and I would have persisted with the resuscitation, and I would have run that resuscitation from that point.” 256
[123] Mr Wakeling gave the following evidence:
“As the scene leader and most senior paramedic on the scene, Ms Hay was responsible for managing the scene. She was responsible for allocating tasks and the clinical care of the patient. As scene leader, Ms Hay had a clinical duty (as did I and all paramedics on the scene) to continually ascertain the objective data during the patient's treatment, including the patient’s:
25.1 heart rhythm;
25.2 heart rate;
25.3 ETCO2 level; and
25.4 pigmentation data.” 257
[124] Mr Cudini’s evidence was that the following should have occurred on 2 October 2017:
“(a) based on the presenting signs of physiological improvement, the patient should have received endotracheal intubation (ETI) immediately upon the MICA arriving. This is an important procedure allowing effective oxygenation administration to the lungs. It is a procedure that can only be performed by trained MICA paramedics. It is designed to deliver increased circulating oxygen in the body and improve oxygenation to the vital organs such as the brain;
(b) there should have been at least 45 minutes of resuscitation – an intensive effort with a close eye on any responses from the patient. The Zoll monitor plays a very important (sic) in providing real time information to the paramedics about a range of matters;
(c) at that 45 minute mark, Ms Hay, as scene leader, could have had the first conversation with the family about whether resuscitation should continue. The contents of that conversation would be dictated by the clinical health of the patient and his response to the 45 minutes of resuscitation, aided by the successful intubation. A family directive to ‘cease’ should get no traction if the clinical signs were promising and there was an even chance of a successful transfer to hospital;
(d) if the significant improving clinical signs were acknowledged and soon after all clinical interventions had been established in the resuscitation, the patient could have been connected up to an ambulance mechanical CPR device in anticipation of a transfer to hospital;
(e) finally, the patient would be driven to the rendezvous location of the Helicopter Emergency Medical Service ('HEMS') and flown to the Royal Children's Hospital within about an approximate 10 – 15 minute flight time. The HEMS resource was dispatched to the Case and cancelled shortly after the MICA team's arrival.” 258
[125] Mr Cudini’s evidence was that “there is nothing exotic or unusual in this analysis. Any trained MICA paramedic knows this sequence of events because it is a conservative form of treatment/clinical management. When appropriately followed, it provides the patient with every opportunity for some form of outcome whilst avoiding prognostication.” 259
[126] Mr Stephenson’s evidence was that it was Ms Hay’s role as the senior MICA Paramedic on scene to walk into the scene, ask the ALS Paramedics what they had before them, assess what was handed over in relation to objective clinical data (including ECG, ETCO2 levels, temperature), set a treatment plan and ask where the family was so someone could bring them to the treatment area where they could be briefed and included. He said his practice is to sit down or kneel down by the Zoll and take control of reading the rhythms and run the timing of the arrest so that drugs and defibrillations occur in a timely sequence. The senior MICA Paramedic would take over the rhythm interpretation and supervise the other Paramedic in their practice. He said this would be the norm. 260 He gave further evidence that protracted cardiac arrest is an indication for urgent intubation.261 He gave further evidence that it is very clear that the obligation of a MICA Paramedic during an arrest is to be aware of heart rhythm and ETCO2 levels. That is what they are there to do – keep a constant eye on those things and to respond accordingly.262
[127] Professor Bernard’s evidence was that Ms Hay was required to:
“• receive a brief history of what had occurred before her arrival from family and first responding paramedics;
• place herself close to the patient so that she can ensure that all the necessary tasks allocated to individual paramedics were performed;
• ensure that appropriate CPR was being performed, including:
(a) chest compressions at the correct rate and depth; and
(b) oxygenation and ventilation were satisfactory, with the airway clear confirmed by an appropriate end-tidal carbon dioxide trace on the Zoll monitor;
• assess the cardiac rhythm on the monitor/defibrillator every two minutes with a brief pause in chest compressions. In cases where a cardiac rhythm on the monitor is present, ensure that a pulse check is performed;
• ensure that an IV was placed;
• ensure that intravenous IV adrenaline 1mg was administered every 4 minutes;
…
• ...allocate Mr Wakeling to the patient's airway and request him to intubate the patient...should have required that the other MICA paramedic undertake this task.” 263
[128] I accept the evidence of Mr Wakeling, Mr Cudini, Mr Stephenson and Professor Bernard as to what was required of the senior MICA Paramedic on scene on 2 October 2017. I therefore find that the above reflects what was required of Ms Hay to discharge the competencies and deliverables of a MICA Paramedic as set out in the Position Description and to properly discharge her duties on 2 October 2017.
[129] It is uncontested that after receiving the handover from Ms Mercer, Ms Hay left the resuscitation to speak with the family. 264 However, the content of that conversation, and indeed how many conversations there were with the parents, is contested. Ms Hay’s evidence was that Mr Jorgensen wasn’t there,265 she believed he was coming home from work266 and she didn’t see him or speak to him.267 She did not accept that there was a male person in the vicinity of Mrs Jorgensen who heard the conversation.268 She says she spoke only to Mrs Jorgensen who almost immediately said to her “he’s dead, isn’t he?” Ms Hay replied, “I’m terribly sorry, but yes, he is”. Ms Hay then says she asked Mrs Jorgensen if she would like resuscitation to continue. Mrs Jorgensen replied “please stop.” Ms Hay says she then went back out to speak with the other Paramedics269 and told them “the parents have asked us to stop.”270 Ms Hay says she only spoke to Mrs Jorgensen once271 and was trying to obtain a history and timeline from Mrs Jorgensen.272 She did not recall saying words to the effect of “we’re doing everything we can” but conceded it was possible.273 Under cross-examination she also gave evidence that she provided a basis for her agreement with Mrs Jorgensen’s assessment that Lachlan was dead, including matters such as Lachlan’s blue face and flat-line. She says she cannot recall the words she used to Mrs Jorgensen, only the concepts.274 In the Investigation Transcript Ms Hay says that during the conversation with Mrs Jorgensen she also introduced herself, asked for more background information concerning Lachlan (which was provided by Mrs Jorgensen), that she apologised for asking for information Mrs Jorgensen had already provided to Ms Mercer,275 and would have said “are you sure?” in response to Mrs Jorgensen’s request that resuscitation stop.276
[130] Both Mr and Mrs Jorgensen’s evidence is that Mr Jorgensen found Lachlan hanging, cut him down and with the assistance of neighbours undertook CPR until Crew 2 arrived. 277 This evidence is not challenged and is consistent with the evidence of Ms Mercer that upon arrival there were two parents and two neighbours at the scene.278 Mr and Mrs Jorgensen’s evidence is that they were both there for the entire period that Paramedics were with Lachlan and that Mr Jorgensen was standing with Mrs Jorgensen for each of the conversations they had with Ms Hay.279They say that Ms Hay spoke with them twice.280 Mr Snow’s evidence is also that he recalls Ms Hay spoke to the parents and thinks she did so twice.281 Ms Pemberton’s evidence is also that Ms Hay spoke to the family twice.282 Mr and Mrs Jorgensen say that Ms Hay spoke to them first briefly, when Ms Hay said “we’re doing everything we can” and then again where she said words to the effect of “we’ve been going for 20 (or 20 something minutes) and we’ve had no response. Would you like us to stop?” Mrs Jorgensen’s evidence is that she replied, “If that is what you think we should do” to which Ms Hay responded “we should stop”.283 Mr Jorgensen’s evidence is to this effect also.284 They also both say that Mr Jorgensen replied with “I suppose so”.285 Mrs Jorgensen denies she asked Ms Hay “he’s dead isn’t he?”.286 Mr Jorgensen’s evidence is consistent with this.287 They both deny that Ms Hay gave the family the option to continue with resuscitation,288 sought further information regarding Lachlan or that Mrs Jorgensen provided it,289 apologised or asked “are you sure?”.290 Their evidence is that Ms Hay raised the stopping of resuscitation.291
[131] In her final written closing submissions Ms Hay submits that her evidence ought be preferred over that of Mr and Mrs Jorgenson. 292 For the reasons that follow I prefer and accept the evidence of Mr and Mrs Jorgensen. Firstly, the evidence discloses that Ms Hay is clearly wrong that Mr Jorgensen was not at the scene. Secondly, there is no evidence which could support her belief that Mr Jorgensen was coming home from work. Thirdly, Ms Hay does not recall precisely what she said only the “concepts”. Fourthly, Ms Hay’s evidence under cross-examination regarding the content of her conversation with Ms Jorgenson is not consistent with her evidence-in-chief that upon approaching Mrs Jorgensen, Mrs Jorgensen “almost immediately” said “he’s dead isn’t he?” Accordingly, I consider Ms Hay’s recollection of these particular events to be unreliable. Fifthly, I find it inherently improbable that any parent in the circumstances of Lachlan’s Case would request that the resuscitation of their child cease at that point in time. Finally, the evidence of Mr and Mrs Jorgensen as to the content of the conversations they participated in with Ms Hay was not challenged in cross-examination. I therefore find that there were two conversations between Mr and Mrs Jorgensen and Ms Hay. A first brief initial conversation after the handover from Ms Mercer and then a further conversation at a later point. I find that in the second of these conversations Ms Hay asked the parents if they would like resuscitation to cease and told them that it should (Second Parent Conversation). I therefore find that Ms Hay initiated discussion of the cessation of resuscitation, advised Mr and Mrs Jorgenson resuscitation should cease and that neither Mr nor Mrs Jorgensen requested that resuscitation cease.
[132] Mr Snow’s evidence, in summary, is that between Ms Hay returning from her conversation with the family immediately after handover and resuscitation ceasing at approximately 21:08, on three occasions he sought to bring to Ms Hay’s attention improvements in Lachlan’s condition. He says that on each occasion she replied to his comments and was dismissive of the clinical information he was conveying.
[133] Mr Snow’s record of interview provides as follows:
[13]: “…At the time the MICA crew arrived I felt there we were now likely to get a return of spontaneous circulation (ROSC). I told Louise and Jarrod that I thought we were making headway. I told Louise there were clear underlying narrow ventricular complexes occurring during CPR. Louise was dismissive of this and said something like ‘It is just artefact’ … At the next pause for rhythm analysis the complexes that I was referring to were clearly present, even when CPR stopped…”;
[14]: “At 21.00, another two minutely pulse check and rhythm analysis were performed. The Zoll printed summary shows that the rhythm was Sinus Bradycardia, heart rate 30, CO2 levels were 38mmHg…. It was obvious that there was a heart rhythm present – yes it was slower than it should be, but it was present. I again pointed out that there was a change in rhythm, but Louise was still dismissive saying something like ‘the rhythm is just Adrenaline driven.’”;
…
[18] “When the patient was reassessed at 21.06 there was a clearly visible rhythm on the monitor screen. There was no palpable pulse present…. I once again advised her that there was a spontaneous heart rhythm present. I had the sense that Louise had already made up her mind that the resuscitation was futile. She had previously made a comment that she thought I/we ‘were flogging a dead horse’. Nonetheless, I reiterated that a heart rate was present and mentioned a number, I think it was 70 or 80. Louise closed off any further discussions with a comment something like ‘I am not going to fuck with the family’. Louise’s comment made me feel like I was acting for my own gratification and not in the patient’s best interests … I then doubted myself and whether I was doing the right thing by aggressively resuscitating the patient” 293
[134] In addition, Mr Snow gave the following evidence:
“I am 100% certain that Ms Hay stated words to the effect of ‘flogging a dead horse’ and ‘I'm not going to fuck with the family’. I suspected the later comment was directed at me, when I advised her for the third time that the patient had a spontaneous heart rhythm showing on the Zoll monitor. I cannot say if she looked at the monitor. I suspect she did. I had the distinct impression she had made her mind up and it did not matter what was recorded on the Zoll monitor.
I am unsure whether the ‘flogging a dead horse’ was directed at me, but it was made… I recall that Ms Hay made the ‘flogging a dead horse comment’ at some time after being shown the presence of sinus rhythm for the second time.” 294
[135] Mr Snow also gave evidence that on each occasion he advised Ms Hay that there was a spontaneous heart rhythm present he pointed to the Zoll. 295
[136] Before considering the evidence in relation to the above matter, I wish first to deal with Ms Hay’s submission contained in her final written closing submissions that the absence of any mention in the ePCRs prepared by Mr Snow and Ms Mercer of the changes in Lachlan’s cardiac rhythm, ETCO2 levels and colour must mean that none of the other Paramedics had knowledge of these changes or, if they did, they attached no clinical significance to them. 296 I have earlier considered the ePCRs prepared in Lachlan’s Case and found that they are unreliable and do not accurately record the events of 2 October 2017. I therefore place no weight on the absence of information about a particular matter in any of the ePCRs. I consider those comments to be equally apt here and for the reasons expressed earlier reject the submission that the absence of mention in the ePCRs of the changes observed in relation to Lachlan’s cardiac rhythm, ETCO2 levels and colour must result in a conclusion that none of the other paramedics had knowledge of these changes or, if they did, they attached no clinical significance to them.
[137] As set out above Mr Snow’s evidence is that the first matter he says he identified to Ms Hay were underlying narrow ventricular complexes during CPR. 297 In his incident report prepared for Mr Cudini he says this occurred after Ms Hay returned from speaking with the family for the first time.298 In his record of interview with the Investigator he does not expressly identify when this occurred.299 Ms Hay says that in the context of Mr Snow’s record of interview, Mr Snow’s evidence to the Investigator is that this alleged statement was made when MICA 24 arrived at the scene and not after Ms Hay returned from speaking to the family.300 Mr Snow says that Ms Hay was standing behind him and that his comments were said out aloud in a raised voice so that all Paramedics could hear his updates.301 Ms Mercer’s evidence was that Mr Snow adopted a process of speaking aloud to inform everyone that the monitor was showing changes in the heart rhythm.302 She also gave evidence that she could see from activity on the Zoll that Lachlan’s heart was responding to the CPR and adrenaline. Her evidence was that the electrocardiogram showed a PEA wave.303 Ms Pemberton’s evidence is that Mr Snow told Ms Hay that there were clear underlying narrow complexes during CPR and that the rhythm was clearly showing on the monitor.304 She says further that Mr Snow was pointing at the Zoll when he said this.305 Ms Pemberton also says this was after Ms Hay had returned from speaking with the family for the first time.306 Ms Brennan gave evidence that she heard Mr Snow tell Ms Hay that he saw changes in Lachlan’s heart rhythm and skin colour during resuscitation on multiple occasions.307 In his record of interview, Mr Wakeling said that he couldn’t recall this conversation but doesn’t dispute that it happened.308 However, his evidence before the Commission was that he was certain that Mr Snow said out aloud, on at least one occasion, that there were changes in Lachlan’s heart rhythm.309
[138] In her evidence-in-chief Ms Hay said that no one at any stage said anything about observing changes in the ECG rhythms. 310 In particular, Mr Snow did not say anything to her to indicate that he believed there had been a change in Lachlan’s condition.311 Ms Hay’s evidence was that Mr Snow was “conspicuously silent”. In cross-examination Ms Hay’s evidence was that she did not deny Mr Snow made a comment identifying underlying narrow ventricular complexes during CPR, rather she did not hear it312 and she does not recall him saying that.313 In her final written closing submissions Ms Hay concedes that the ECG information before the Commission demonstrates that there was, at times during the resuscitation, electrical activity in Lachlan’s heart that was not due to external factors. She also concedes this lends credence to Mr Snow’s evidence that he saw underlying rhythms on the Zoll.314
[139] Mr Snow’s evidence is Ms Hay dismissed the information regarding underlying complexes seen during CPR, saying words to the effect of “it is just artefact” 315 (Artefact Statement). In her incident report and her record of interview, Ms Pemberton states that Ms Hay dismissed Mr Snow’s information regarding narrow complexes by saying it was “artefact” or something like that.316 In her witness statement Ms Pemberton said that she could not now recall the precise language used317 and that in response to Mr Snow’s advice regarding the change in heart rhythm Ms Hay said “it is CPR” or “it is artefact”.318 Her evidence was that she interpreted Ms Hay’s statement to be saying that the CPR might be interfering with the Zoll making it difficult to properly identify an underlying rhythm.319 The JP Notes contain the following:
“• MICA crew arrive. [Ms Mercer] hands over briefly.
• Lady MICA goes to talk to the family members
• Male MICA takes over airway (inserts gastric tube)
• I start CPR
• I notice 1-2 PEA beats
• More and more beats return
• Alan notices this. And says this out loud
• MICA man acknowledges, MICA lady says this is CPR Alan explains that it is ‘Narrow Complex’”
[140] Under cross-examination she conceded that “artefact” and “CPR” were quite different words. 320 Her evidence was that whilst she could not now recall the precise language used by Ms Hay she recalled “the conversation”.321
[141] Ms Hay’s evidence on this point is that she did not say that the changes in Lachlan’s heart rhythm were artefact or anything to that effect. 322 In cross-examination Ms Hay said she does not use the term “artefact”323 and did not say the changes were artefact.324 However, in her final written closing submissions she concedes that she may have used the word “artefact”,325 despite her recollection to the contrary and that she might be mistaken in her recollection.326 She submits that because she is mistaken so might all of those present on the night be mistaken.
[142] For the reasons that follow, I find that Mr Snow did identify to Ms Hay that there were underlying narrow complexes visible on the Zoll. Firstly, all five of the other Paramedics at the scene, including Mr Wakeling, say that Mr Snow made comments aloud regarding changes to Lachlan’s heart rhythm. Secondly, Ms Pemberton’s evidence, including the JP Notes, also corroborates Mr Snow’s evidence that he specifically identified underlying narrow complexes to Ms Hay. In the light of overwhelming weight of evidence that Mr Snow spoke out loud identifying changes in Lachlan’s heart rhythm, I do not accept Ms Hay’s evidence that Mr Snow did not make the alleged statements as he was “conspicuously silent”. Further, under cross-examination she did not maintain her assertion that the statements were not said, rather she said she did not hear them or she could not recall them.
[143] As to when Mr Snow made this comment, I consider little turns on this. However, for completeness, I find that this occurred after Ms Hay returned from speaking with the family for the first time. In her final written closing submissions Ms Hay appears to imply that Mr Snow’s evidence on this matter is inconsistent as between his record of interview and his incident report prepared for Mr Cudini. 327 If that submission is made, I reject it. Mr Snow’s evidence regarding the manner in which the record of interview and his other evidence was produced is set out above. I accept that evidence and the reason as to why there may be some variations between those statements. Secondly, the two statements are not, in my opinion, inconsistent. Mr Snow’s incident report says he told Ms Hay of the narrow complexes during CPR after Ms Hay returned from speaking with the family,328 whereas his record of interview does not expressly articulate when he says he made these comments.329 Thirdly, Ms Pemberton’s evidence is that this occurred after Ms Hay returned from speaking with the family the first time and this is also reflected in the JP Notes. Finally, Mr Snow’s evidence is consistent that the comments were made just prior to the next pulse check at 21.00. Given that, the time of MICA 24’s arrival at the scene and my findings above that after taking a handover from Ms Mercer, Ms Hay then went to speak to the family, I find that the most likely sequence of events is that these comments occurred after Ms Hay returned from speaking with the family for the first time.
[144] As to the Artefact Statement, I accept Mr Snow’s evidence and also find that Ms Hay did say words to the effect of “it is just artefact”. My reasons are as follows. Firstly, notwithstanding her denial in oral evidence, in her final written closing submissions Ms Hay concedes that she may have used the word “artefact” and that her recollection regarding this matter may be mistaken. Secondly, whilst Ms Pemberton says she cannot now be sure as to whether Ms Hay said “it is CPR” or “it is artefact” she had a clear recollection of the conversation and its effect, that is, that Ms Hay indicated the changes identified were the result of something other than spontaneous cardiac activity. Further, both her record of interview and her incident report included assertions that Ms Hay dismissed Mr Snow’s view that narrow ventricular complexes were evident during CPR saying that were artefact. 330 I reject the submission that because Ms Hay now concedes her recollection on this matter may be mistaken, I ought conclude that the recollection of others might also be mistaken. Mr Snow and Ms Pemberton gave clear and consistent evidence and do not concede that they are mistaken in their recollection. In their incident reports prepared in November 2017, and their subsequent investigation statements, both Mr Snow331 and Ms Pemberton332 included assertions that Ms Hay dismissed Mr Snow’s view that narrow ventricular complexes were evident during CPR saying that they were artefact. Accordingly, in my opinion, there is no sound basis on the evidence before the Commission upon which a conclusion could be reached that Mr Snow and Ms Pemberton also are, or may be, mistaken in their recollection.
[145] Finally, I reject Ms Hay’s evidence that if Mr Snow made the alleged comments, she did not hear them or does not recall them. I have found that Mr Snow did identify to Ms Hay narrow ventricular complexes during CPR and, further, that Ms Hay did make the Artefact Statement. In my opinion, the Artefact Statement is responsive to Mr Snow’s comment. It seeks to provide an alternate explanation for the changes in heart rhythm during CPR identified by Mr Snow. I consider this to be consistent with Ms Hay’s view that Lachlan had died. In order to respond to Mr Snow’s comments Ms Hay must have heard them. I therefore find that not only did Ms Hay make the Artefact Statement but that she heard Mr Snow’s comments regarding narrow ventricular complexes during CPR.
[146] Mr Snow’s evidence is that at 21.00 another two-minute pulse check and analysis (2 Minute Analysis) was performed. CPR was not being performed at this time. Mr Snow says it was obvious that there was a heart rhythm present, albeit slower than it should be. He says he again pointed this out to Ms Hay. 333 His evidence was that he spoke directly to Ms Hay and looked at her while doing a pulse check.334 He says he pointed to the Zoll.335 He says that Ms Hay dismissed this saying something like “the rhythm is just adrenaline driven” (Adrenaline Driven Statement) and instructed Ms Mercer to not give any more adrenaline.336 Mr Snow says he is certain that he advised Ms Hay of changes in Lachlan’s ETCO2 levels, heart rhythm and skin colour.337 Mr Wakeling’s evidence is that he does not recall this conversation but that changes in Lachlan’s heart rhythm were well known. He says that asystole was the presenting rhythm when MICA 24 arrived but this soon changed and was evident throughout the case.338 As already set out, Mr Wakeling’s evidence is also that he is certain that Mr Snow said out aloud, on at least one occasion, that there were changes in Lachlan’s heart rhythm.339 Ms Mercer’s evidence is that Mr Snow told Ms Hay at least twice that there were changes in Lachlan’s cardiac activity and on each occasion Ms Hay was dismissive of Mr Snow.340 She says she was the furthest away from Mr Snow and she heard these comments.341 Ms Mercer’s evidence is that on one of these occasions, after Ms Hay returned from speaking to the family for the first time, Ms Hay said that the heart rhythm on the Zoll was adrenaline driven and directed her to stop administering adrenaline.342 She says that the Paramedics were still in active resuscitation when this direction was given.343 Ms Pemberton’s evidence is that at 21.00 a 2 Minute Analysis was undertaken. The Zoll showed that there was a rhythm (a narrow complex bradycardia) and ETCO2 levels were rising. Mr Snow pointed this out to Ms Hay specifically telling Ms Hay that there was a narrow complex rhythm at a rate of 80. Ms Hay “said something like ‘the rhythm is adrenaline driven’”.344 Ms Pemberton says these changes were clearly pointed out to Ms Hay but the changes to the heart rhythm and ETCO2 reading were clearly visible on the Zoll and available for everyone to see. Ms Pemberton says that Ms Hay said the rhythm was adrenaline driven and directed Ms Mercer to cease giving adrenaline.345 Ms Brennan’s evidence-in-chief was that at one point when Mr Snow advised Ms Hay of the changes in Lachlan’s heart rate, Ms Hay said words to the effect of “the rhythm is adrenaline driven” and directed Ms Mercer not to give any more adrenaline.346 However, under cross-examination Ms Brennan conceded that she did not have a clear recollection of what was happening or the discussions between Mr Snow and Ms Hay (with one exception to which I refer later in this decision). In response to a question from the Bench as to what she recalled Mr Snow saying during the resuscitation, Ms Brennan’s evidence was that she remembered him talking about changes in ETCO2 levels and that they were increasing and that there was a different rhythm on the monitor than when the crews first arrived. She believed this occurred towards the end of the resuscitation.347
[147] In her evidence-in-chief Ms Hay said that no one at any stage said anything about observing changes in the ECG rhythms, ETCO2 levels or Lachlan’s skin colour. 348 In particular, Mr Snow did not say anything to her to indicate that he believed there had been a change in Lachlan’s condition.349 Ms Hay’s evidence was that Mr Snow was “conspicuously silent”.350 However, under cross-examination Ms Hay said that she could not comment on whether Mr Snow said those things; rather she did not hear them351 and she did not hear Mr Snow speak.352 She says she did not say that the rhythm was adrenaline driven or a product of adrenaline.353 She concedes, however, that she did tell Ms Mercer to cease adrenaline but she says that occurred after resuscitation had ceased, as the timing cue had come up and Ms Mercer had asked Ms Hay whether she should administer more adrenaline.354 However, in her final written closing submissions Ms Hay concedes that she may have used the words “adrenaline driven”,355 despite her recollection to the contrary and that she might be mistaken in her recollection.356 She submits that because she is mistaken so might all of those present on the night be mistaken. Ms Hay also gave evidence that she checked the Zoll at 21.00 and again at 21.02 and it showed asystole.357
[148] For the reasons that follow, I prefer the evidence of Mr Snow on this point and find that at the 21.00 2 Minute Analysis Mr Snow did identify to Ms Hay changes in Lachlan’s condition, specifically changes in his heart rhythm and changes in his ETCO2 levels and that they were clearly visible on the Zoll. Firstly, Mr Snow’s evidence that he identified changes in Lachlan’s cardiac activity and ETCO2 levels is corroborated by Ms Pemberton. Secondly, that Mr Snow identified changes in cardiac activity at this time to Ms Hay is corroborated by Ms Mercer, who says Mr Snow told Ms Hay at least twice of changes in Lachlan’s cardiac activity. Her evidence that following this occurring Ms Hay said that the changes were adrenaline driven and directed her to cease administering adrenaline is also consistent with Mr Snow’s evidence and supports a conclusion that this was one of the two occasions that she says Mr Snow identified changes in Lachlan’s cardiac activity to Ms Hay. Thirdly, all five of the other Paramedics at the scene, say that Mr Snow made comments aloud regarding changes to Lachlan’s heart rhythm. Ms Brennan also recalls Mr Snow identifying changes to Lachlan’s ETCO2 levels. In light of the overwhelming weight of evidence of Mr Snow identifying out aloud, at least, some changes to Lachlan’s cardiac rhythm, I reject Ms Hay’s denial that the Mr Snow made the alleged statements as he was “conspicuously silent”. Fourthly, under cross-examination Ms Hay did not maintain her assertion that the statements were not said, rather she said she did not hear them. Fifthly, in her final written closing submissions Ms Hay concedes that the ECG information produced to the Commission in evidence adds weight to Mr Snow’s version of events about what he saw and said regarding Lachlan’s clinical signs. 358 Additionally, Ms Hay also concedes that there were positive CO2 levels on eight of the 10 occasions when the Zoll recorded this data, although she submits that this data is of little assistance as it does not provide any guidance as to what caused the reading or its duration.359 I deal with this submission below at [227]-[228].
[149] As to the Adrenaline Driven Statement, I accept Mr Snow’s evidence on this point and also find that Ms Hay did say words to the effect that the rhythm was “adrenaline driven”. My reasons are as follows. Firstly, in her final written closing submissions Ms Hay concedes that she may have used the words “adrenaline driven” and that her recollection regarding this matter may be mistaken. Secondly, Mr Snow’s evidence is corroborated by that of Ms Pemberton and Ms Mercer. Given Ms Brennan’s lack of recall of the conversations that occurred generally during Lachlan’s Case, I place no weight on the evidence contained in her witness statement that she also heard this comment. I reject the submission that because Ms Hay now concedes her recollection on this matter may be mistaken, I ought conclude that the recollection of others might also be mistaken. Mr Snow, Ms Pemberton and Ms Mercer gave clear and consistent evidence. In their incident reports prepared in November 2017, and their subsequent investigation statements, all three included assertions that Ms Hay dismissed Mr Snow’s view that there were changes in Lachlan’s cardiac activity, saying that the change was adrenaline driven (or words to that effect). 360 Accordingly, on the basis of the evidence before the Commission there is, in my opinion, no sound basis upon which such a conclusion could be reached.
[150] I reject Ms Hay’s evidence that if Mr Snow made the alleged comments she did not hear them. I have found that Mr Snow did identify to Ms Hay changes in Lachlan’s cardiac activity and ETCO2 level and, further, that Ms Hay did make the Adrenaline Driven Statement. In my opinion, as with the Artefact Statement, the Adrenaline Driven Statement is responsive to Mr Snow’s comments. It also seeks to provide an alternate explanation for the changes in heart rhythm identified by Mr Snow when no CPR is being undertaken. As already noted, I consider this to be consistent with Ms Hay’s view that Lachlan had died. In order to respond to Mr Snow’s comments Ms Hay must have heard them. I therefore find that not only did Ms Hay make the Adrenaline Driven Statement but that she heard Mr Snow’s comments regarding changes to Lachlan’s cardiac activity.
[151] Finally, I also reject Ms Hay’s evidence that she directed that Ms Mercer cease administering adrenaline after resuscitation had ceased. Firstly, in light of the purpose for which adrenaline is given in a cardiac arrest, I consider it implausible that Ms Mercer, a Paramedic employed by AV for approximately 20 years, would have asked Ms Hay if further adrenaline ought be administered after resuscitation had ceased or have required a direction not to administer further adrenaline after a resuscitation had ceased. Secondly, Mr Snow, Ms Mercer and Ms Pemberton’s evidence is that this comment was made while resuscitation was still in progress.
[152] Mr Snow’s evidence is that at some point after being shown the presence of spontaneous cardiac activity for the second time Ms Hay said words to the effect of continuing resuscitation is “flogging a dead horse” 361 (Horse Statement). Mr Snow says that he is certain that she said this.362 Ms Pemberton gave evidence that she heard Ms Hay make the Horse Statement.363 Ms Brennan also gave evidence that Ms Hay made the Horse Statement.364
[153] Ms Hay denies making the Horse Statement. 365
[154] I accept the evidence of Mr Snow, Ms Pemberton and Ms Brennan on this matter and find that Ms Hay did make the Horse Statement. My reasons are as follows. Firstly, whilst it may be accepted that the Horse Statement is a well-known colloquial phrase, it is, in my opinion, nonetheless a very specific and particular phrase. I consider it unlikely to be a miscommunication or to have been misunderstood. Mr Snow, Ms Pemberton and Ms Brennan all say they heard Ms Hay make the Horse Statement. Secondly, Ms Hay conceded in cross-examination that she did not know either Ms Pemberton or Ms Brennan and could offer no explanation as to why they would untruthfully assert that Ms Hay made the Horse Statement. 366 Further, she agreed that she could also offer no explanation as to why Mr Snow would do so.367 Accordingly, I find that Ms Hay did make the Horse Statement. In doing so, I place no weight on Mr Snow’s evidence that the Horse Statement was mentioned by a member of the public at Lachlan’s football club.368 In making this finding I have given consideration to the fact that the Horse Statement is not included in the incident reports prepared by Mr Snow, Ms Pemberton or Ms Brennan. It is also not included in Ms Pemberton’s record of interview. It is, however, included in the JP Notes. I consider this to be of considerable evidential weight, most particularly where Ms Pemberton’s evidence is corroborated by Mr Snow and Ms Brennan. Finally, although in her oral evidence Ms Brennan did not have a clear recollection of many aspects of AV’s attendance at Lachlan’s Case, and, accordingly on other matters I have given her evidence little weight, she did have a clear recollection of Ms Hay making the Horse Statement and I accept that evidence.
[155] Mr Snow’s evidence is that at approximately 21.02 Ms Hay went to speak with the family. 369 At 21.06 a further 2 Minute Analysis was undertaken.370 Mr Snow’s evidence is that at this 2 Minute Analysis there was a clearly visible rhythm on the Zoll. He says that when Ms Hay’s returned from speaking with the family he advised her that there was a spontaneous heart rhythm.371 He says he spoke directly to her372 and pointed to the Zoll when doing so.373 He says he told her there was a heart rate, mentioning a number of 70 or 80.374 Ms Hay said words to the effect of “I’m not going to fuck with the family” (Family Statement).375 Ms Pemberton’s evidence is that at this 2 Minute Analysis there was a clearly visible rising heart rate and increasing ETCO2 levels.376 She says Ms Hay returned from speaking to the family and said something like we are not going any further. Mr Snow stated that there are narrow complexes and a rate of 80.377 He gestured with his hand.378 Ms Hay said “I don’t want to fuck around the family”.379 Ms Mercer gave evidence that after Ms Hay came back from speaking with the family Mr Snow again reiterated that there were changes on the Zoll,380 to which Ms Hay said “I am not going to fuck with the family”.381 Ms Brennan gave oral evidence that when Ms Hay returned from speaking with the family, Mr Snow again reiterated changes in Lachlan’s cardiac activity and in his ETCO2 levels.382 She says this occurred close to the end of the resuscitation.383
[156] In her evidence-in-chief Ms Hay said that no one at any stage said anything about observing changes in the ECG rhythms, ETCO2 levels or Lachlan’s skin colour. 384 In particular, Mr Snow did not say anything to her to indicate that he believed there had been a change in Lachlan’s condition.385 Ms Hay’s evidence was that Mr Snow was “conspicuously silent”.386 Ms Hay denies making the Family Statement.387
[157] As set out above, I have already found that Ms Hay had two conversations with the family; an initial conversation after taking the handover from Ms Mercer and the Second Parent Conversation. I therefore find that the above referred to conversation with the family from which Ms Hay just immediately returned, is the Second Parent Conversation. I have also previously found that in the Second Parent Conversation Ms Hay asked the parents if they would like resuscitation to cease and told them that it should.
[158] For the reasons that follow, I prefer the evidence of Mr Snow on this matter and find that at the 21.06 2 Minute Analysis Mr Snow did identify to Ms Hay for a third time changes in Lachlan’s condition, specifically that Lachlan had a spontaneous heart rhythm at a rate of around 80 and that this was visible on the Zoll. Firstly, Mr Snow’s evidence that he identified Lachlan’s cardiac activity to Ms Hay for a third time at the 21.06 2 Minute Analysis is corroborated by Ms Pemberton and Ms Mercer. Secondly, Ms Brennan’s oral evidence supports Mr Snow’s evidence, noting that she says he identified cardiac changes and ETCO2 level changes close to the end of resuscitation, which was at 21.08 and therefore very shortly after the 21.06 2 Minute Analysis. Thirdly, all five of the other Paramedics at the scene, say that Mr Snow made comments aloud regarding changes to Lachlan’s heart rhythm. In the light of overwhelming weight of evidence of Mr Snow identifying out aloud at least some change to Lachlan’s cardiac rhythm, I reject Ms Hay’s denial that the Mr Snow made the alleged statements as he was “conspicuously silent”.
[159] As to the Family Statement, I accept the evidence of Mr Snow, Ms Pemberton and Ms Mercer on this matter and find that Ms Hay did make the Family Statement. My reasons are as follows. Firstly, as with the Horse Statement, the Family Statement is, in my opinion, a very particular and specific statement and, as with the Horse Statement, I consider it unlikely to be a miscommunication or to have been misunderstood. Mr Snow, Ms Pemberton and Ms Mercer all say they heard Ms Hay make the Family Statement. Secondly, Ms Hay conceded in cross-examination that she could offer no explanation as to why Ms Pemberton or Mr Snow would untruthfully assert that Ms Hay made the Family Statement. 388 Thirdly, I consider that the Family Statement is consistent with Ms Hay’s view that Lachlan had died and the view which she had just expressed in the Second Parent Conversation that resuscitation should cease. In that context, I consider the Family Statement to be directly responsive to Mr Snow’s reiteration that there were signs of a positive change in Lachlan’s cardiac activity and reflective of Ms Hay’s view, as expressed to Lachlan’s parents, that resuscitation ought cease. Accordingly, I find that Ms Hay did make the Family Statement.
[160] The Cudini Report provides that resuscitation ceased at 21.08. 389 Ms Hay’s evidence was that she had no reason to doubt the timeline included in the Cudini Report390 and that in accordance with that timeline, resuscitation ceased at 21.08.391 AV contends that Ms Hay directed that resuscitation cease. Ms Hay denies that she directed that resuscitation cease and says that each Paramedic agreed to cease. She submits that by their actions in agreeing to end the resuscitation it must be concluded that all the other Paramedics shared her view that Lachlan had died.392 She submits that this is verified by the ePCR for Crew 1,393 which contains the following note:
“MCIA 24 arrived approx.. 2057…..nil active interventions, gathered hx & all agreed to cease…”
and Crew 2’s ePCR 394 which includes the following notes under the heading “Transport”:
“Not Transported Reason Pt Dead on Arrival” 395
[161] She further submits that the evidence plainly shows that not only was the decision to cease resuscitation made collectively but that it was a considered decision put to the other Paramedics on three occasions. 396
[162] Ms Hay’s evidence-in-chief regarding the cessation of resuscitation was that she did not direct anyone to cease resuscitation, 397 it was a group decision,398 Mrs Jorgensen had asked that resuscitation cease and she asked her colleagues if they would like to cease.399 Her evidence was that each of the attending Paramedics, individually and clearly, expressed their belief that continued resuscitation was futile.400 She says she spoke to each Paramedic individually,401 looked at them each in the eye402 and asked if they would like to continue resuscitation.403 She says that all of the attending Paramedics verbally agreed to cease resuscitation404 by individually saying “yes” or “stop”.405
[163] Mr Snow’s evidence is that he took the Family Statement as a direction from Ms Hay that resuscitation was to cease. 406 He says he has no recollection of Ms Hay asking others whether they wanted to stop resuscitation407 and he did not verbally agree to the cessation of resuscitation.408 He has no recollection of anything being said by Ms Hay following her return from the Second Parent Conversation.409 Mr Snow agreed in cross-examination that no one verbally opposed cessation of resuscitation.410 The following exchange occurred between Mr Snow and Mr Hull:
“Speculation was that someone had heard it and noted it at the football club but I won't pursue the point. I don't think I'm getting very far with it. I made the point I wished to make. 24.12, you talk about your feeling just prior to Ms Hay calling the cease resuscitation - that's a typo there but - either on my part or in the original but the effect of it is just prior to the resuscitation ceasing, you felt that, ‘Why should we give up? We are winning.’ But before I get to that, I need to put to you quite clearly that Ms Hay did not call the resuscitation to an end. She didn't direct it to cease. That there was a decision to cease the resuscitation was a decision that was taken by the paramedics in attendance at the scene, was it not?---I think not.
Why do you think not?---I think not because I pointed out yet again that we had a rhythm on the screen, we had something to work with and I was told in no uncertain terms, ‘We're not going to fuck with the family.’ I took that to mean, ‘I'm not entering into any more discussion about this, it's over.’ (Indistinct.)
Ms Hay did not say to you and the others there, ‘Cease the resuscitation’, did she?---No, she made the comment that I - - -
She made a comment which you - which is denied - but she made a comment and if she did say it, we could agree that it would be inappropriate or perhaps misplaced but she never said to you, ‘Stop the resuscitation.’ By you, I mean you plural - she never came out and said, ‘Stop this resuscitation, it needs to stop’, did she?---Using those words, no.
Using those words or words to that effect?---I think the effect of when saying, ‘We have a rhythm’, and saying, ‘We're not going to fuck with the family’, made her point clear.” 411
…
“Early on in the resuscitation I pointed out there was a rhythm. That was dismissed as being artefact. Within a minute I pointed out and she looked at it and noted that we had a sinus rhythm there, by way of a reason to keep going, with making progress. Her response to that - it's a bit like sitting on a stool and having one leg kicked out, "We're going to stop the adrenaline." I didn't speak up then. We've continued along and we've now got improvement in some other things. That's pointed out and we were told that we were flogging a dead horse. So that is painting some level of pessimism and that's another leg of the stool being kicked out. Then the final thing, I've asked the others and they were unsure because they were also confused, like, "Where is this job going? It's different to where we thought it would go." The expectation - I made a pitch, clearly, when she has come back from talking to the family: "We have a rhythm on the screen. We have a rate of 80", and I was told we're not going to eff with the family and I conceded to her direction.
As I put to you, you say that using that phrase, making that comment, amounted to a direction that the resuscitation should come to an end?---That's how I interpreted it, yes.” 412
[164] Mr Snow also gave evidence that he asked the other Paramedics while Ms Hay was having the Second Family Conversation whether they thought resuscitation should continue 413 and he believed he also asked after resuscitation had ceased whether they were in agreement to stopping.414 No one verbally responded.415 In his incident report he says he asked only once but does not say when this occurred.416 In his record of interview he also says he asked only once before CPR ceased. 417 Under cross-examination his evidence is he asked the other Paramedics when Ms Hay left for the Second Family Conversation whether they thought Lachlan “was too far gone”.418 His evidence was he was looking for support to continue resuscitation as he thought they should be continuing. He thought that Ms Hay was going to cease resuscitation due to her dismissal of his previous advices.419 He agreed none of other Paramedics said that resuscitation should continue.420 I accept that evidence.
[165] Mr Snow’s evidence was that he was “blind-sided” by the Family Statement and his optimism that Lachlan’s condition was improving was replaced with self-doubt. 421 Ms Hay was the scene leader and a senior MICA Paramedic. He deferred to her authority.422 In his incident report Mr Snow said that because Ms Hay’s decision to end resuscitation was so different from what he expected he deferred to her decision and seniority in running the arrest.423 By the Family Statement, he considered that Ms Hay had pre-emptively shut down any feedback from others.424
[166] Mr Snow gave further evidence that ePCRs are prepared by entering certain information manually and other information is automatically populated. 425 Of the information entered manually, this can be entered freehand or by selecting options.426 He did not enter any freehand information into Crew 2’s ePCR.427 Mr Snow’s evidence under cross-examination was that the ePCR has a menu with a limited number of options to select from as to why the patient wasn’t transported.428 His evidence was the Lachlan was not dead on arrival429 and he has either selected the wrong option430 or a clumsy option.431 The reason Lachlan wasn’t transported was because he died at the scene.432
[167] Mr Wakeling’s evidence is that he recalls a discussion about whether resuscitation should continue. 433 He recalls Ms Hay saying that the family wanted resuscitation to cease.434 In his incident report he says that all Paramedics were asked if they were comfortable in ceasing resuscitation and it was agreed that resuscitation would cease.435 However, in his oral evidence to the Commission he said that Ms Hay put to the group as to whether resuscitation should cease436 but does not recall the exact words used.437 His evidence was that he does not recall anyone saying “I agree” or anyone raising an objection to cessation.438 He says that based on his understanding of the clinical indications and the family’s alleged direction to cease resuscitation, he did not consider it unreasonable to cease resuscitation.439
[168] Ms Pemberton’s evidence is that Ms Hay came over to Lachlan after speaking with the family and said resuscitation was to stop. 440 She says that Ms Hay told her to stop resuscitation via saying “I don’t want to fuck around the family”.441 These were the last words that were said before resuscitation stopped.442 She took this as an instruction to cease resuscitation.443 She has no recollection of Ms Hay asking the Paramedics if they would like to cease resuscitation but does not say this did not happen.444 Ms Pemberton says she disagreed with the decision to cease resuscitation445 but did not say anything in response446 and neither she nor anyone else voiced any objection.447 She says that Mr Snow did not indicate that he agreed to the cessation of resuscitation448 and appeared unhappy about cessation,449 confused and uncertain.450
[169] Ms Pemberton’s evidence was that she disagreed with ceasing resuscitation but “didn’t do anything” because Mr Snow:
“had raised the issue multiple times during the arrest that the patient’s condition had changed and I thought what was I going to add to that as a student. At least three times verbally saying the condition had changed. That’s all I had seen. I didn’t think I had anything else to add.” 451
[170] Ms Pemberton also gave evidence that Mr Snow asked everyone if they were happy to cease resuscitation. 452
[171] Ms Mercer’s evidence is that after returning from speaking to the family, Ms Hay told the crews that resuscitation was ceasing. Mr Snow said “something about the change in cardiac activity” and Ms Hay said “I am not going to fuck with the family”. She does not recall Ms Hay specifically stating that the family had asked that resuscitation cease and in light of her conversations with the family she finds this “weird”. 453 She did not resist Ms Hay’s direction to cease resuscitation.454 No one verbally objected to resuscitation ceasing.455 The following exchange occurred between Ms Mercer and Mr Hull:
“What circumstances are you not able to speak up?---It's to do with - like, there's times - well, in this situation too, like, we stopped the resus, and I was reluctant because I didn't know why we were stopping, but at the same token [sic] [MICA] are the senior clinicians and I always assume just that they're much more smarter and competent than me, so you go with it.
You go with it without even saying, "Excuse me, I don't think that we should stop"?---No, but Alan had said those things anyway.
I don't think that's correct, is it? He didn't say - or we've not heard any evidence that indicates that he said, "I don't think we should stop"? ---We told her what we had - well, Mike [MICA] (sic) as well. So we told them what we had. Alan had reiterated that there were monitor changes and it was stopped.
Yes, so you're saying that - your evidence is that Ms Hay was advised of the changes that you'd seen in [Lachlan]?---Yes.
But no one - or at least we're yet to hear the evidence. No one actually said, "I don't think we should stop resuscitation"?---Not in those words, no.
In fact, when you were asked - I withdraw that. Everyone was asked their opinion as to whether resuscitation should continue or not?---Well, it wasn't as clear as that.
Can you tell me what actually happened?---Well, there's two parts to it in that sense. So when it was, like, "Okay, we'll stop", and Alan again reiterated, Louise basically got aggressive and said she wasn't going to fuck with the family, so, you know, I'm not going to get into a fight in a garage about it when I've got to then look after myself post the job, go speak to the family, the police and my student as well, and then at the end of it Louise did ask everyone if they were okay, but I know Louise has previously done peer support as well, so I just - I assumed it was a welfare thing, and she did actually say, and I can't remember the exact words, though, but that, you know, I would look after my student post it, knowing that I did peer as well.” 456
[172] Ms Mercer also gave further evidence that she did not resist the cessation of resuscitation as she thought a MICA Paramedic was more clinically competent and smarter than she and she assumed Ms Hay was looking at it from a place of greater knowledge and saying that the ALS crews’ efforts were futile despite their belief that they were making progress. 457
[173] Ms Brennan’s evidence-in-chief was that Ms Hay said that resuscitation should cease and that she did not challenge that. She says she had no confidence to challenge a senior MICA Paramedic. 458 However, under cross-examination her evidence was that she did not recall Ms Hay stating that resuscitation should stop.459 She says Mr Snow asked her and the others whether they thought resuscitation should continue, in response to which she “kind of nodded”.460 She thinks this occurred only once.461
[174] Mr Stephenson’s evidence was that the senior MICA Paramedic assumes a very important role in these cases. It is the responsibility of the senior MICA Paramedic to lead the scene and others to the right outcome. MICA Paramedics in AV carry “an enormous amount of clout” so that when the senior person at the scene makes a decision it will often be blindly followed by other Paramedics. 462 The senior Paramedic “carries the can” for the decisions made at a scene.463
[175] I reject Ms Hay’s evidence that she asked each Paramedic individually if they wished to cease resuscitation and each responded “yes” or “stop”. None of the other attending Paramedics say that anyone verbally agreed to ceasing resuscitation. Notably, even Mr Wakeling, whose evidence was that he did not, at the time, consider cessation unreasonable, says that no one said “I agree”. It is uncontested that no one verbally objected to cessation. However, that is, clearly, not the same thing as expressing positive agreement, which is what Ms Hay says occurred. Ms Hay says she put the cessation of resuscitation to each Paramedic individually and they each positively agreed by responding with “yes” or “stop”. In light of the overwhelming weight of evidence to the contrary, Ms Hay’s evidence that each Paramedic agreed to the cessation of resuscitation by saying “yes” or “stop” is rejected. Accordingly, I find that the other Paramedics did not verbally agree to the cessation of resuscitation. I therefore reject Ms Hay’s submission that because of their “agreement” to the cessation of resuscitation it must be concluded that the other Paramedics shared her view that Lachlan was dead. As to the content of the ePCRs, I have previously expressed my view that the ePCRs prepared in Lachlan’s Case are unreliable and do not accurately record the events of 2 October 2017. I therefore do not consider them to be of any evidential weight. Further, I found Mr Snow to be a credible witness and I accept his evidence as to how the ePCR for Crew 2 was populated.
[176] Ms Hay further submits that none of the Paramedics who say that she directed them to cease give any detail of how Ms Hay provided that direction. I also reject that submission. As set out above, Mr Snow’s evidence is that he took the Family Statement as a direction to cease resuscitation and his evidence as to why he did so is also set out above. Ms Pemberton’s evidence was that Ms Hay told her to cease resuscitation “via” the Family Statement and her evidence as to why she did not object to resuscitation ceasing is also set out above. Ms Mercer’s evidence as to the circumstances in which resuscitation ceased and her understanding of the Family Statement is also set out above. I accept their evidence. Further, Ms Hay was the scene leader and the most senior clinician on site. Mr Wakeling’s evidence was that as the most senior Paramedic on the scene Ms Hay was responsible for managing the scene. She was responsible for allocating tasks and the clinical care of the patient. 464 The MICA Paramedics on scene dictate the patient’s management, assessment465 and care.466 One of the senior MICA Paramedics will take the lead, they oversee and dictate patient care and make decisions.467 Mr Stephenson’s evidence was that as the senior MICA Paramedic and team leader Ms Hay was responsible for the care of the patient and she takes over the running of the case from the other Paramedics.468 Ms Hay’s own evidence is that the scene leader directs what is happening and has overall control of the scene.469 Given that, the nature and language of the Family Statement, and following, as I have found it did, the making by Ms Hay of the Artefact Statement, the Adrenaline Driven Statement and the Horse Statement, I find that the Family Statement in the circumstances in which it occurred was, in effect, a direction by Ms Hay that resuscitation was to cease. I reject Ms Hay’s submission that the decision by the other Paramedics was a considered decision which was put to them on three occasions. I find that Ms Hay’s direction was complied with by the other Paramedics as Ms Hay was the scene leader and senior MICA Paramedic on site and the person responsible for Lachlan’s care and the running of the arrest.
[177] Accordingly, I find that Ms Hay did not ask each Paramedic individually if they wished to cease resuscitation. I find that no one verbally agreed to the cessation of resuscitation. However, I also find that no one verbally opposed or objected to the cessation of resuscitation. I further find that in all the circumstances in which the Family Statement was made it was, in effect, a direction by Ms Hay that resuscitation cease.
[178] It is readily apparent from all of the material in this matter that one of matters in issue from inception was whether Ms Hay complied with Clinical Practice Guideline A0203 Version 7 (CPG A0203) on 2 October 2017. Specifically, whether there was an obligation under CPG A0203 for resuscitation to continue for a minimum period of 30 minutes and whether under that Clinical Practice Guideline there were compelling reasons to continue resuscitation based on Lachlan’s age and signs of life.
[179] In evidence-in-chief on day one of the hearing, without notice, Ms Hay produced for the first time Clinical Practice Guideline A0203 Version 8, dated 6 December 2017 (CPG A0203 Version 8). 470 Ms Hay and Mr Hull communicated to the Commission that CPG A0203 Version 8 had only been recovered the day before and that Mr Hull had only become aware of it at around 11 pm the evening before the hearing. On its face, Version 8 postdates the events of 2 October 2017.
[180] CPG A0203 Version 8, under Special Notes provides as follows:
“In unwitnessed arrests (i.e. not seen or heard to arrest), an initial rhythm of asystole is associated with extremely high morbidity and mortality. In these cases resuscitation should be withheld if the estimated downtime between collapse and arrival of the first ambulance (or first responder) exceeds 10 minutes. Bystander CPR alone does not improve outcomes in this population and is not considered a compelling reason to continue.” 471
[181] In her evidence-in-chief Ms Hay gave evidence that CPG A0203 Version 8 applied on 2 October 2017, 472 that she had been trained in it at the May 2017 to July 2017 training day and that once the guideline had appeared and been discussed in a training day, Paramedics were expected to update their practice to include the new guidelines.473 She gave the following evidence as to the effect of CPG A0203 Version 8:
“To clarify the clinical practice guideline for ceasing resuscitation finished as I said in the May to July CPE training day. That's the dates for the day one of the training day. It changed then and it moved an extra description of cardiac arrest and an extra reason why resuscitation should be ceased in line with the State Trauma Services so it indicated - so from previously to arrival at a cardiac arrest unwitnessed with a downtime to commence 30 minutes of resuscitation with compelling reasons. This added into an extra box where if on arrival of the first crew the presenting rhythm is asystole and the downtime is ten minutes then resuscitation shouldn't be commenced.” 474
[182] She gave a detailed factual account of how the update to CPG A0203 was provided to her at the training day, 475 of it being a slip of paper added into the CPE training book,476 and gave evidence that she “forgot” about the new guideline until she found it the day before the hearing which jolted her memory.477 In cross-examination Ms Hay said that on 2 October 2017 she was operating under CPG A0203 Version 8 (withholding and ceasing resuscitation for prolonged downtime),478 she maintained that she had been trained in that guideline in May 2017479 and her account of how she had been provided with CPG A0203 Version 8.480 She said she had a clear recollection of taking CPG A0203 Version 8 away from the training day in 2017, that CPG A0203 Version 8 was “quite clearly on my mind” on 2 October 2017481 and that at the end of her assessment of Lachlan that is the guideline that she was following.482 The following exchange occurred between Counsel for AV and Ms Hay:
“Your evidence-in-chief and now cross-examination was that the guideline you were operating under is version 8. It's got a date on it of 6/12/17. You know that, don't you, because I'm talking about your document here?---Yes.
Do you agree with me it wasn't operative at that time?---It was operative after I did the CPE day earlier in 2017.
That's your evidence, okay. Now, you say that's the guideline that you're operating under, so I want to take you back into real time on 2 October 2017. Is it your evidence that in your head, on that occasion, the guideline that you were applying, the CPG A0203, that you were applying, was in substance what's contained in version 8 which you handed up today, which has a heading, "No prospect of resuscitation", et cetera? Was that operating in your mind on that day?---Yes, that's - - -
In real time?---At the time of the job - - -
At the time of the job?--- - - - when I was assessing [Lachlan], there was a full and complete assessment, and at the end of the assessment that's the guideline that I was following.
So in your head, contemporaneously, as lawyers would say, in the moment, version 8 and its requirements, its obligations, is what's in your head and what you're thinking I'm working to that CPG, is that your evidence, Ms Hay?---I'm looking at all of them and which one fits best, which is why I asked my colleagues, but that's the one I felt fit best.
I just want to be really clear. At that time, on that night, 2 October, when you've done your assessments, which you've given evidence about, in your head is clinical practice guideline - we now know I'm just calling it version 8 - I've been trained on it, that's what I'm applying - is that your evidence?--- That's what I was thinking, but I wasn't going to act without the group and force the group into my decision - - -
Okay. You were thinking about it, this version 8 document that has appeared today, on the night on 2 October 2017, weren't you?---Yes.
That's a long time ago. It's about, you could say 18 months ago, isn't it?---Nearly two years.” 483
[183] Ms Hay gave evidence that she had applied CPG A0203 Version 8 at another case involving a deceased baby 484 and that she became confused because of the focus on CPG A0203 in Lachlan’s Case.485 As to Ms Hay’s asserted confusion as to which guideline applied on 2 October 2017, the following exchange occurred between Ms Hay and Counsel for AV:
“Ms Hay, on 2 October 2017 there was no confusion in your mind about which guideline applied. It was CPG A0203 - I'll call it version 7, that we've produced in evidence, where it sets out the compelling reasons child under 18 and the like. There was no confusion in your mind on 2 October 2017, was there?---There was version 8. That's the version I had. ” 486
[184] In response to questions from Counsel for AV as to why she had not raised her confusion with her lawyers she said:
“By the middle of December I had completely forgotten about that guideline. I will have to be honest. I've completely forgot. I knew I'd made a decision. I knew I'd made - but I couldn't remember why I'd made the decision, and I was so sure that I had acted outside guidelines and I had made a terrible decision that I was beside myself (indistinct).” 487
[185] She conceded that she had not mentioned CPG A0203 Version 8 to Mr Cudini when he was conducting the clinical case review, 488 to the Investigator during the Investigation489 nor included any reference to it in her statement filed in this matter.490
[186] Professor Bernard gave evidence that he is a member of the Ambulance Victoria Clinical Practice Development Committee (CPDC). 491 The CPDC considers any changes to Ambulance Victoria’s Clinical Practice Guidelines.492 At a meeting held on 1 November 2017 the CPDC considered changes to CPG A0203 due to the impending introduction in March 2018 of the Medical Treatment Planning and Decisions Act 2016.493 Professor Bernard is the Chair of the Ambulance Victoria Medical Advisory Committee (MAC).494 The role of the MAC is to consider material put up by the CPDC.495 On 6 December 2017 the MAC approved changes to CPG A0203.496 CPG A0203 Version 8 was not in force until 12 March 2018, when the changes to the relevant legislation commenced.497 CPG A0203 was not written until it had been approved by the MAC on 6 December 2017 and did not go live until March 2018. It was not disseminated to Paramedics before March 2018.498 It could not have been seen in 2017499 nor could there have been training on it in mid-2017 as it had not been considered by the CPDC at that time.500 Professor Bernard’s evidence regarding CPG A0203 Version 8 was not challenged.
[187] I reject Ms Hay’s evidence on this point and accept the evidence of Professor Bernard for the following reasons. Firstly, this matter has been the subject of multiple review and investigative processes over a period of almost two years. At no stage in the almost two years that this matter had been on foot prior to commencement of the hearing, including during the case review undertaken by Mr Cudini, the Investigation, the multiple proceedings before the Commission or at any stage in the filing of material in this matter leading to hearing, has Ms Hay contended that CPG A0203 was not the applicable clinical practice guideline on 2 October 2017 or that she was confused as to which guideline applied. Secondly, I find her explanation for this to lack credibility. Given the critical nature of this evidence, I find it implausible that Ms Hay simply forgot about attending training and receiving and applying CPG A0203 Version 8 until the evening before the hearing. Thirdly, Professor Bernard’s evidence as to when and how CPG A0203 Version 8 was created and came into existence was not challenged in cross-examination. Fourthly, in her final written closing submissions Ms Hay accepts that her assertions regarding receiving and being trained in CPG A0203 Version 8 “plainly did not happen.” 501 Accordingly, I find that CPG A0203 Version 8 was not in existence on 2 October 2017, that this guideline was not in Ms Hay’s mind on 2 October 2017 and that she did not therefore apply that guideline when making treatment decisions regarding Lachlan, including in relation to the cessation or continuation of resuscitation.
[188] In her final written closing submissions Ms Hay described her recollection of these matters as a “spectacular” example of how her memory “can trick her into being positively convinced of an event.” 502 I reject that Ms Hay’s evidence on this matter was mistaken or confused or the result of memory “trick”. Ms Hay gave a detailed factual narrative of how she obtained the CPG A0203 Version 8 update in mid-2017, of it being put loose into the training book and of the training she attended in relation to it. However, her evidence went further than that. She gave evidence that the matters in CPG A0203 Version 8 were in her mind at the time at which she treated Lachlan on 2 October 2017 and that she applied them when deciding on his treatment. Most significantly, she relied upon CPG A0203 Version 8 to justify the cessation of resuscitation at the stage it occurred on the basis that under that guideline resuscitation should not have started. In light of the above, I consider that Ms Hay misled the Commission on this issue.
[189] CPG A0203 was the applicable clinical practice guideline in operation on 2 October 2017. 503
[190] Page 1 of CPG A0203 provides the following under the heading “Special Notes”
“• Mass casualty incidents are in part characterised by the available resources being overwhelmed by larger patient numbers. Where this is the case AV Emergency Management Unit provide trauma triage guidelines for patient assessment that may differ significantly from guidelines used in other patient situations.
• Prolonged cardiac arrest may be determined in two ways. The first is where there is clear evidence of decomposition / putrefaction, rigor mortis or post mortem lividity.
• Prolonged cardiac arrest may also be an adult presenting in asystole (verified with three monitoring leads > 30 seconds) with the interval between cardiac arrest onset i.e. collapse and arrival of the crew at the patient > 10 minutes and where there are no compelling reasons to continue.
• Compelling reasons to commence or continue resuscitation include:
• suspected hypothermia
• suspected drug OD
• a child (< 18 years)
• a family member requests continued effort
• any signs of life observed including pupil reaction or agonal / ineffective gasping respiration
• patient in VF or VT.
• Injuries incompatible with life are where there is no possibility of having survived i.e. decapitation, incineration and there are no signs of life. This is distinct from where it may be believed that there is no prospect for eventual survival due to injury severity. Traumatic cardiac arrest outcomes are poor but not futile.
• Poor prognostic factors in cardiac arrest resuscitation include unwitnessed arrest, no prior bystander CPR and duration of cardiac arrest exceeding 30 minutes.
• Ambulance Victoria supports a person's right to articulate wishes for medical treatment and care in advance through any of the following;
• appointment of a substitute decision maker - usually an enduring power of attorney (medical treatment)
• documentation of wishes in an advance care plan
• refusal of treatment certificate
• if under 18 years old, a management plan or letter from the treating doctor.
• A paramedic may provide or withhold treatment based upon the patient's wishes as recorded on a document that is sighted by them or paramedics may accept, in good faith, the advice from those present at the scene of the patient's wishes and that this supporting documentation exists.
• Ambulance paramedics are required to include discussions of patient's wishes and decisions in their documentation.
• If the person's wishes are unknown or there is doubt about the documentation or its existence, paramedics are to provide routine care.
• A Refusal of Treatment Certificate (ROTC) may only be completed in relation to a current condition. When ceasing or withholding resuscitative efforts in these circumstances the attending Paramedic must be satisfied that the patient's cardiac arrest is most likely due to this current condition.
• Under the Medical Treatment Act 1988 a person acting under the direction of a registered medical practitioner who, in good faith and in reliance on a ROTC, refuses to perform or continue medical treatment is not guilty of professional misconduct or guilty of an offence or liable in any civil proceedings because of the failure to perform or continue that treatment.” 504 (Commission’s emphasis added).
[191] On page 3 under the heading “Cessation of resuscitation” CPG A0203 provides as follows:
“Adult (> 18) who, after 30 - 45 minutes of ALS resuscitation (including DCCS /drug therapy) has nil ROSC, no signs of life including pupil reaction and agonal / gasping respiration and no compelling reason to continue” 505
[192] The precise length of Lachlan resuscitation prior to cessation is not agreed. It is agreed, however, that resuscitation ceased after either 23 or 26 minutes. 506 It is therefore uncontested that resuscitation ceased prior to 30 minutes duration.507
[193] Ms Hay’s evidence was that she was aware of the contents of CPG A0203 on 2 October 2017. 508 In her witness statement her evidence regarding CPG A0203 was that she was aware of a 30 minute guide.509 In cross-examination she confirmed she was aware of the 30 minute resuscitation guideline.510 She agreed that unless there were extraordinary circumstances she was required to follow the guideline.511 In her oral evidence-in-chief, as set out above at paragraph [181], she said that CPG A0203 provided for 30 minutes of resuscitation with compelling reasons in an unwitnessed cardiac arrest with downtime.512 In her witness statement her evidence was that she did not and does not believe that there were compelling reasons to continue Lachlan’s resuscitation. She says that none of the matters said to constitute signs of life set out in the allegations made against her appear in AV’s clinical guidelines.513 In cross-examination the following exchange occurred between Counsel for AV and Ms Hay:
“Before you went to speak to the family - before - and you had spoken to Kelly Mercer, did you form the view in your mind, ‘There is no compelling reason to continue here’?---Yes, yes. I thought he had died. It's awful, but I thought he had died.” 514
[194] She conceded that she formed the view that Lachlan was dead at around 17 or 18 minutes 515 and that the duration of resuscitation at that time was “short of the 30-minute mark”.516
[195] Under cross-examination she agreed that she was required to comply with all AV policies and procedures, including the Clinical Practice Guidelines. 517 She agreed that she knew that under CPG A0203 a compelling reason to commence or continue resuscitation included that the patient was a child under 18 years.518 She also gave evidence under cross-examination that she knew when she arrived at the scene on 2 October 2017 that Lachlan was a child under 18 years of age and that under CPG A0203 Lachlan’s age was a compelling reason to commence or continue resuscitation.519 In relation to these matters the following exchange occurred between Ms Hay and counsel for AV:
“This is CPG A0203 and it's 12/09/12. ‘Version 7’ is what it says at the top. You might be able to see that in small font. Do you see that?---Yes.
Do you see that there are special notes - - -?---Yes.
- - - on this first page we're looking at and four bullet points down, ‘Compelling reasons to commence or continue resuscitation include.’ Do you see that?---Yes.
In June 2017 and on the night of October 2017, you were aware of the contents of this CPG A0203 version 7, weren't you?---Yes. This was the original and I was aware of the updates, yes.
Yes. You were aware of this original though, too, weren't you? (No audible reply)
And you knew on 2 October 2017 that a compelling reason to commence or continue resuscitation includes suspected hypothermia. Is that correct?---Yes.
Includes suspected drug OD?---Yes
A child under 18 years. You see that?---Yes, yes, I read that.
When you turned up at the scene where [Lachlan] was on 2 October 2017, you were under no illusion or no mistake there was a child who was under 18 years, weren't you?---Yes.
You knew that?---Yes, I saw him.
You agree that the age of that child, [Lachlan] in this case, was a compelling reason to commence or continue resuscitation?---Under this guideline, yes. That's correct.” 520
…
Under CPG 0203, version 7, which we produced in the court book and the like, which we've all been operating under, there was a compelling reason to continue, wasn't there, resuscitation? This is on 2 October 2017?---Because of his age?
Yes - he was 15?---He was 15. There is the compelling reason to go for 30 minutes instead of 26. Yes, there is a compelling reason.” 521
[196] Mr Wakeling’s evidence was that he knew it was a requirement under AV’s Clinical Practice Guidelines that resuscitation continue for 30 minutes. 522 Mr Cudini’s evidence was that all Paramedics are required to comply with CPG A0203.523 The expected period of resuscitation in accordance with CPG A0203 is 30 – 45 minutes. Lachlan’s age was a compelling reason to continue resuscitation.524 Mr Stephenson’s evidence was that Clinical Practice Guidelines contain instructions for Paramedics’ performance of their duties. He gave evidence that there is not a Paramedic “in town” who would say that CPG A0203 is “just” a guideline.525 If the case fits the guideline, it is expected that the guideline be applied as a template.526 Deviations from the guideline only occur if there is good reason.527 CPG A0203 is the guideline for all patients.528 30 minutes is the bare minimum period of resuscitation for a 15 year old.529 The age of the patient is a critical determining factor in a cardiac arrest and one of the very significant determinants in whether or not to undertake resuscitation or continue resuscitation.530 Professor Bernard’s evidence was that CPG A0203 is a guideline but it is expected that all Paramedics must follow it unless there is a compelling reason not to.531 It provides a minimum expected timeframe for resuscitation of 30 minutes prior to cessation.532 It is contrary to CPG A0203 to cease resuscitation of a patient after 23 minutes in circumstances where the Zoll showed cardiac activity.533 There is an expectation that CPR will continue for much longer with teenagers and children who display clinical signs consistent with continuing life.534 Professor Bernard’s evidence was that there were compelling reasons to continue resuscitation for at least 30 minutes. Those reasons included Lachlan’s age.535
[197] In her final written closing submissions Ms Hay submits that CPG A0203 provides a recommended resuscitation period prior to cessation for adults only and says that it does not contain a resuscitation period for a child under 18 years of age. 536 Further, Ms Hay submits that CPG A0203 is a guideline only and not a protocol or work instruction with which strict compliance would be expected,537 although she does not disagree that clinical guidelines should be followed unless there is good reason to depart from them.538
[198] I do not consider the construction of CPG A0203 advanced by Ms Hay to be correct. I accept that read in isolation the instruction under the heading “Cessation of resuscitation” in CPG A0203 might be considered to apply to adults only. However, the document must be read as a whole. That instruction provides that resuscitation of an adult (> 18) may cease after 30 – 45 minutes if the patient has no ROSC, no signs of life and there are no compelling reasons to continue. If it was intended that the cessation of resuscitation instruction applied only to adults the inclusion of a child in the special notes section under “compelling reasons to commence or continue resuscitation” would be unnecessary. Further, I note that the same drafting approach has been adopted in relation to the special notes regarding prolonged cardiac arrest, which provide as follows:
“• Prolonged cardiac arrest may be determined in two ways. The first is where there is clear evidence of decomposition / putrefaction, rigor mortis or post mortem lividity.
• Prolonged cardiac arrest may also be an adult presenting in asystole (verified with three monitoring leads > 30 seconds) with the interval between cardiac arrest onset i.e. collapse and arrival of the crew at the patient > 10 minutes and where there are no compelling reasons to continue.” 539
[199] Additionally, I note that the special notes also contain the following:
“• Poor prognostic factors in cardiac arrest resuscitation include unwitnessed arrest, no prior bystander CPR and duration of cardiac arrest exceeding 30 minutes.” 540
[200] Accordingly, in my view, when read as a whole, CPG A0203 provides that resuscitation continue for a minimum period of 30 minutes and in the case of a child there is a compelling reason to continue resuscitation.
[201] Further, Ms Hay’s evidence was that on 2 October 2017 she was aware of the content of CPG A0203. She accepted that she was required to follow it unless there were extraordinary circumstances. She agreed that under CPG A0203 resuscitation was to continue for a minimum period of 30 minutes and further, based on Lachlan’s age, there was a compelling reason under CPG A0203 to continue resuscitation. Accordingly, on the basis of Ms Hay’s own evidence, her submission that CPGA 0203 was a guide only and did not provide a requirement that resuscitation of a child continue for a minimum of 30 minutes cannot be sustained. This is consistent with the evidence of Mr Cudini, Mr Stephenson and Professor Bernard. It is also consistent with the evidence of the other attending MICA Paramedic, Mr Wakeling.
[202] Accordingly, I find that on 2 October 2017, CPG A2030 was the applicable clinical practice guideline. I find that it applied to Ms Hay’s treatment of Lachlan and she was required to comply with it. I find that CPG A0203 required that resuscitation continue for a minimum duration of 30 minutes. I also find that as Lachlan was a child under 18 there was a compelling reason to continue resuscitation under CPG A0203. I further find that on 2 October 2017 Ms Hay knew of the requirements under CPG A0203 and that absent exceptional circumstances she was required to comply with it. I find that she knew that Lachlan was a child under 18 years of age and that in those circumstances there was a compelling reason to continue resuscitation for a minimum period of 30 minutes. I therefore find that Lachlan’s resuscitation ceased in breach of CPG A0203.
[203] CPG A0203 provides that a compelling reason to continue resuscitation includes “any signs of life observed including pupil reaction or agonal / ineffective gasping respiration”.
[204] Ms Hay’s evidence was that she did not and does not consider that there were compelling reasons to continue resuscitation. She says none of the signs of life contained in the Clinical Practice Guidelines were present. 541 Under cross-examination she said that she formed the view that there were no compelling reasons to continue resuscitation because she believed that Lachlan had died before she went to speak to the family for the first time.542 Her evidence was that spontaneous respirations and dilated pupils are the signs of life she goes by. ETCO2 levels are not an indicator and are not one of the signs of life in the Clinical Practice Guidelines.543
[205] I consider it clear from the use of the word “including” in the above phrase contained in CPG A0203 that pupil reaction or agonal/ineffective gasping respiration are not an exhaustive statement of the signs of life which provide a compelling reason to continue resuscitation under CPG A0203. Notwithstanding her evidence, Ms Hay conceded this in her verbal closing submissions. 544 Accordingly, the fact that other matters are not expressly articulated in CPG A0203 does not, of itself, lead to the conclusion that they are not signs of life which may provide a compelling reason to continue resuscitation. Further, by including the word “any” before signs of life, I also consider it is clear that there is no limitation of which signs of life must be observed in order for there to be a compelling reason to continue resuscitation under CPG A0203.
[206] AV contends that there were signs of life which provided a further compelling reason to continue Lachlan’s resuscitation. I shall now consider the medial science and other evidence to determine if, as contended by AV, there were further compelling reasons to continue resuscitation.
[207] The following evidence was given as to the medical science. It was largely uncontested.
Function of the heart
[208] Mr Cudini’s evidence is that electrical activity of the heart is the current required to initiate a heart contraction whilst mechanical activity is the physical pumping of the heart. 545 A pulse is caused by the contraction of the heart muscle that works as a pump to move the blood through the body.546 His evidence further is that the heart rate of a normal and relatively healthy patient is approximately 60 – 100 beats per minute (bpm) at rest.547 The normal electrical rhythm of a young heart is sinus rhythm548 and this rhythm, depending on physiology, is generally present in healthy patients up to 75 to 80 years old.549
[209] Professor Bernard’s evidence is consistent with that of Mr Cudini’s such that a heart rate and a palpable pulse is indicative of blood pumping around the body 550 and that a normal heart rate is over 80 bmp.551
[210] Mr Cudini also gave evidence-in-chief that sinus bradycardia is a rhythm that represents a slower heart rate than normal 552 and can occur naturally in people who are physically fit,553 but may also be caused by the effects of medication overdose or a lack of oxygen circulating through the body.554 His evidence is that that when the heart has no mechanical or electrical activity, and is not contracting, the heart is in asystole.555
[211] Professor Bernard gave evidence that a slow heart rate is indicative of a lack of oxygen and/or the carbon dioxide level in the blood being too high. 556
Function of the lungs
[212] Mr Cudini’s evidence as to the function of the lungs is that CO2 is a by-product of cellular metabolism within the body. 557 The level of CO2 being expelled from the lungs during exhalation is measured by ETCO2.558 Professor Bernard’s evidence is consistent with this. His evidence is that ETCO2 is indicative of oxygen being delivered to the cells resulting in CO2 being generated.559 Mr Stephenson gave evidence that normal or very good CO2 levels are between 30 – 40 mmHg.560 Professor Bernard gave evidence that ETCO2 levels are ideally more towards 30 mmHg.561
[213] Mr Cudini’s evidence is that an increase in ETCO2 is correlated with the presence of a heart rhythm and return to spontaneous circulation (ROSC) and in cardiac arrest patients, it indicates that the patient's cells are undergoing cellular metabolism. 562 Mr Stephenson’s evidence is also that high ETCO2 levels suggest that the cells are working and producing carbon dioxide.563
Hanging and cardiac arrest
[214] Professor Bernard’s evidence-in-chief was that in a hanging event, there is a sudden, severe lack of blood and oxygen flow to the brain, which injures the brain. He gave evidence that as the brain is sensitive to a lack of oxygen, a person will lose consciousness within seconds of cessation of blood flow through the brain. 564 Mr Stephenson gave evidence consistent with this that in cardiac arrests, proper oxygenation is vital, and that there is nothing, per se, wrong with the heart.565 Professor Bernard further gave evidence that the heart is more resilient than the brain in a hanging event and will continue to beat for some minutes after the oxygen level decreases.566 His evidence is that even when the heart has stopped beating, electrical activity of the heart may persist. This is called pulseless electrical activity (PEA). Even though the heart muscle does not contract due to very low oxygen levels, the electrical system in the heart continues to operate for some minutes after loss of the pulse.567
Resuscitation
[215] Professor Bernard’s evidence is that Paramedics perform pulse checks and rhythm checks on the Zoll every two minutes during resuscitation. 568 Ms Hay also gave evidence to this effect.569 Mr Cudini’s evidence is that asystole occurs where the heart has no mechanical or electrical activity and is not contracting.570
[216] Professor Bernard and Mr Cudini both gave evidence that intravenous adrenaline is administered every four minutes during resuscitation. 571 Mr Cudini gave evidence as to the effects of adrenaline on the heart in a cardiac arrest, being that adrenaline increases systolic and diastolic blood pressure, increases the heart rhythm or heartbeat rate, and increases the force of the heart's contractions572 and that these effects result in a greater volume of blood returning back to the heart from blood vessels around the body.573
[217] Professor Bernard’s evidence is that where a patient has a heart rhythm that is “shockable”, then defibrillation is required. 574
[218] The Treatment Summary Report 575 records the following, noting that the times recorded are one hour behind the correct time, due to daylight savings:576
Start time: 02/10/2017 |
19:44:36 |
Last event: 02/10/2017 |
20:08:29 |
Elapsed Time: |
00:24:13 |
# Events: |
64 |
Total Shocks: |
0 |
Total Pace Time: |
00:00:00 |
Total 12 Leads: |
0 |
19:44:36 |
New Case ID |
19:44:36 |
System On |
19:44:36 |
Patient Mode Adult |
19:44:37 |
Some Alarm Limits Disabled |
19:44:44 |
Self Test Passed |
19:44:57 |
Enter Rescue Protocol |
19:45:02 |
HR Low Alarm 29 bpm |
19:45:04 |
No Shock Advised |
19:45:49 |
HR Low Alarm 37 bpm |
19:47:13 |
No Shock Advised |
19:47:16 |
HR Low Alarm 35 bpm |
19:48:19 |
HR Low Alarm 20 bpm |
19:49:06 |
HR Low Alarm 20 bpm |
19:49:24 |
No Shock Advised |
19:49:25 |
HR Low Alarm --- bpm |
19:49:38 |
HR Low Alarm 28 bpm |
19:50:11 |
HR Low Alarm --- bpm |
19:50:45 |
HR Low Alarm 23 bpm |
19:50:54 |
HR Low Alarm --- bpm |
19:51:22 |
HR Low Alarm --- bpm |
19:51:34 |
No Shock Advised |
19:52:46 |
HR Low Alarm --- bpm |
19:53:43 |
No Shock Advised |
19:53:47 |
HR Low Alarm 20 bpm |
19:54:39 |
HR Low Alarm --- bpm |
19:55:51 |
HR Low Alarm --- bpm |
19:55:53 |
No Shock Advised |
19:56:10 |
HR Low Alarm --- bpm |
19:58:03 |
No Shock Advised |
19:58:27 |
HR Low Alarm --- bpm |
19:58:48 |
HR Low Alarm --- bpm |
19:59:39 |
RESP Low Alarm ---/min |
19:59:51 |
HR Low Alarm 35 bpm |
20:00:14 |
No Shock Advised |
20:00:24 |
HR Low Alarm 25 bpm |
20:00:37 |
EtCO2 High Alarm 52 mmHg |
20:01:23 |
RESP Low Alarm 2/min |
20:01:54 |
HR High Alarm 198 bpm |
20:02:23 |
No Shock Advised |
20:02:24 |
HR Low Alarm --- bpm |
20:02:38 |
HR High Alarm 122 bpm |
20:02:39 |
RR/BR No Breath Alarm |
20:02:47 |
No Breath Alarm – Breathing Resumed |
20:02:54 |
EtCO2 High Alarm 72 mmHg |
20:03:36 |
RESP Low Alarm 4/min |
20:04:32 |
RESP Low Alarm 4/min |
20:04:32 |
EtCO2 High Alarm 68 mmHg |
20:04:33 |
HR Low Alarm --- bpm |
20:04:33 |
No Shock Advised |
20:04:55 |
RR/BR No Breath Alarm |
20:05:04 |
EtCO2 Low Alarm 0 mmHg |
20:05:10 |
No Breath Alarm – Breathing Resumed |
20:05:17 |
EtCO2 High Alarm 56 mmHg |
20:05:39 |
HR Low Alarm 25 bpm |
20:05:44 |
EtCO2 High Alarm 67 mmHg |
20:06:12 |
RR/BR No Breath Alarm |
20:06:19 |
RESP Low Alarm ---/min |
20:06:21 |
EtCO2 Low Alarm 0 mmHg |
20:06:33 |
No Breath Alarm – Breathing Resumed |
20:06:40 |
EtCO2 High Alarm 116 mmHg |
20:06:43 |
No Shock Advised |
20:07:51 |
EtCO2 High Alarm 87 mmHg |
20:08:00 |
HR Low Alarm 35 bpm |
20:08:29 |
EtCO2 High Alarm 59 mmHg |
[219] The Treatment Summary Report was uncontested by Ms Hay.
[220] I have already found that the changes in Lachlan’s heart rate and ETCO2 levels identified by Mr Snow to Ms Hay during resuscitation were visible on the Zoll and seen at varying times by all five other attending Paramedics.
[221] The last recorded information from the Zoll contained in the Treatment Summary Report is at 21.08. That records a heart rate of 35 beats per minute at 21.08.00 and ETCO2 of 59 mmHg at 21.08.29. 577
[222] As to what was visible on the Zoll prior to resuscitation ceasing, Mr Snow’s evidence is that at 21.06 there was a clear sinus rhythm on the Zoll 578 and that Ms Hay could not have missed or mistaken the sinus wave forms on the Zoll.579 He says the rhythm and ETCO2 data was clearly and readily available on the Zoll.580 Lachlan’s colour had improved dramatically and there was a cardiac rhythm.581 ETCO2 was up.582 There was a physical improvement in Lachlan’s condition.583 Ms Pemberton’s evidence is that prior to Ms Hay making the Family Statement, Lachlan had a PEA of approximately 80.584 She also gave evidence that when resuscitation ceased she did not think it should because the mucosa around Lachlan’s mouth had turned pink, there was an obvious rhythm on the Zoll showing the heart had a return of electrical activity and the ETCO2 level was high and on a strong upward trend.585
[223] Ms Hay’s evidence was that she does not recall looking at the Zoll after she returned from the Second Family Conversation 586 and prior to resuscitation ceasing but she “would have”.587 Her evidence was that it was her usual practice to check the Zoll.588 She also gave evidence that she didn’t see any improvement in skin colour or the PEA.589 She could not recall checking Lachlan’s skin colour,590 checking for a heart sound,591 checking the Zoll592 or checking ETCO2 levels593 after returning from the Second Family Conversation and prior to cessation of resuscitation. Under cross-examination Ms Hay agreed that checking such clinical data before a major decision is made regarding a patient’s treatment is a normal every day activity of a MICA Paramedic.594 She agreed that it was her role as a MICA Paramedic and scene leader to be aware of the clinical factors before inviting resuscitation to cease.595
[224] Mr Cudini’s evidence was that the Treatment Summary Report demonstrates that there were a number of stages during the resuscitation when there was electrical activity in Lachlan’s heart. 596 These changes in rhythm are associated with significant improvement in ETCO2 and effective CPR being performed.597 The intermittent signs of physiological improvement by way of changing heart rhythm, increasing ETCO2 and normalising skin colour all indicated that Lachlan was responding to treatment.598 These factors, combined with the patient's age, provided compelling reasons to continue resuscitation.599
[225] Professor Bernard’s evidence was that Treatment Summary Report demonstrates that at multiple periods during the resuscitation, there was a measurable heart rate on the ECG monitor, mostly between 20 and 35. 600 Professor Bernard gave further evidence that at the time resuscitation ceased Lachlan appeared to have a cardiac rhythm, a heart rate of 96 and ETCO2 of 80 mmHg and significantly improved skin colour. There were compelling reasons to continue resuscitation for at least 30 minutes.601
[226] Mr Stephenson’s evidence was that the Treatment Summary Report demonstrates that there were frequent episodes of sinus rhythm during the resuscitation. That indicated that Lachlan was imminently resuscitatable. 602 Under cross-examination Mr Stephenson’s evidence was that he had never seen a patient with brief episodes of sinus rhythm.603 Sinus rhythm is a very clear sign of life.604 His evidence was that the Treatment Summary Report demonstrates that at 21.00 Lachlan had a heart rate of 30, was in sinus bradycardia and had ETCO2. This suggests Lachlan was alive.605 Mr Stephensons’ further evidence was that at 21.06 the summary says that there was a heart rate of 96, and ETCO2 at 80 mmHg.606 At 21.00, it was 38 mmHg. At that time, Lachlan was alive or almost alive because his CO2 had risen again. The only reason for that was that Lachlan had produced more CO2, suggesting his cells were working, and that he was alive, or close to alive. His circulation was about to be restored.607 Mr Stephenson gave evidence that in his professional opinion, Lachlan was highly likely to be able to be resuscitated.608 The ETCO2 high alarm of 116 mmHg at 21.06 indicates Lachlan was alive, but probably under-ventilated,609 and the sudden rise in ETCO2 probably indicates he had some spontaneous circulation.610 The heart rhythm and the ETCO2 levels were clear signs of life and provided compelling evidence to continue resuscitation.611 Mr Stephenson’s evidence was that it is indisputable that there were signs of life. There was a physical manifestation of that.612 Lachlan had objective vital signs, was likely not dead and was likely able to be resuscitated.613 Mr Stephenson’s evidence was that the ECG strips represented 15 seconds of recording from the Zoll out of the 26 minutes of AV’s attendance. He said that this is a reliable evidentiary basis on which to draw conclusions as to what was happening.614
[227] Accordingly, the evidence of Mr Cudini, Mr Stephenson and Professor Bernard is that the Treatment Summary Report reflects the changes in rhythm, heart rate and ETCO2 alleged to have been observed by Mr Snow and others both during resuscitation and immediately prior to cessation. I accept that evidence and also find that immediately prior to resuscitation ceasing there was a sinus rhythm and increased ETCO2 levels visible on the Zoll. In her final written closing submissions, Ms Hay concedes that the ECG records produced do indicate that there were occasions during Lachlan’s resuscitation when there was genuine electrical activity in his heart. 615 She also agrees that there were positive ETCO2 levels on eight of the 10 occasions when the Zoll recorded this data. However, she submits that the ETCO2 levels provide little, if any, information as they provide no guidance as to the factors that caused those readings or their duration.
[228] Mr Cudini, Mr Stephenson and Professor Bernard all gave consistent, clear and compelling evidence that in their professional opinion the presence of a sinus rhythm and rising ETCO2 levels were clinical manifestations of improvement in Lachlan’s condition and were compelling reasons to continue resuscitation. Mr Stephenson’s evidence, in particular, was categoric. Evidence of a sinus rhythm and rising ETCO2 levels were clear signs of life. In his opinion that was indisputable. I accept their evidence over that of Ms Hay. I therefore reject Ms Hay’s submission that there were no compelling reasons to continue resuscitation or that little can be drawn from the ETCO2 levels recorded. I find that the presence of a sinus rhythm and rising ETCO2 levels were signs of life and were a compelling reason for resuscitation to continue. Accordingly, I therefore find that Lachlan’s resuscitation ceased in breach of CPG A0203.
[229] I also reject Ms Hay’s contention that the Full ECG is required. It is implicit in the evidence of Mr Cudini, Mr Stephenson and Professor Bernard, which I have accepted, that the available ECG data is sufficient and that the Full ECG is not required. Further, under cross-examination Mr Stephenson expressly rejected the proposition that no conclusions could be drawn without the Full ECG. His evidence was that the available data was a reliable basis upon which conclusions could be drawn. I accept that evidence.
[230] As to Ms Hay’s contention that the Treatment Summary Report demonstrates that two persons viewing the Zoll only seconds apart may obtain very different information, I accept that is, theoretically, possible. However, for the reasons that follow, that cannot, in my view, found a basis for Ms Hay’s failure to observe what I have found to be signs of life which provided a compelling reason to continue resuscitation. Firstly, although Ms Hay says her usual practice is to check the Zoll, her evidence is that she does not recall doing so prior to resuscitation ceasing. Secondly, Ms Hay agreed that it was her role as a MICA Paramedic and scene leader to be aware of the clinical factors before inviting resuscitation to cease. Mr Snow and Ms Pemberton saw a rhythm, a heart rate of 96 and increasing ETCO2 levels. Mr Cudini, Mr Stephenson and Professor Bernard’s evidence confirms that those clinical factors were present and real. As such, based on her own evidence it was Ms Hay’s responsibility to be aware of those matters before resuscitation ceased. On her own evidence she was not. Her evidence has consistently been that the Zoll showed asystole on each occasion she looked at it and that at no time did she see an end tidal waveform. Accordingly, if Ms Hay did not observe the changes in Lachlan’s condition evidenced in the Treatment Summary Report and visible on the Zoll to the other Paramedics during resuscitation and to Mr Snow and Ms Pemberton immediately prior to resuscitation ceasing, as the senior MICA Paramedic on site and scene leader she ought have.
[231] Ms Hay submits that if she breached CPG A0203 and is to be held accountable for that, then each of the attending Paramedics must also be held accountable. 616 AV contends that Ms Hay was the scene leader and failed to ensure compliance with CPG A0203. AV contend that this is a matter of great professional significance.617 For the following reasons I reject Ms Hay’s submission and find that as the scene leader she was both responsible and accountable for ensuring that CPG A0203 was complied with. Firstly, I have previously found that as scene leader Ms Hay was responsible and accountable for managing the scene and directing Lachlan’s care. I have also found that as scene leader she was responsible for decisions made at the scene and that the Family Statement operated as a direction that resuscitation cease. Secondly, Mr Stephenson’s evidence, which I accept, was that while each Paramedic is expected to carry out their role properly and to comply with Clinical Practice Guidelines, the scene leader co-ordinates and dictates the patient’s care. That is the role of the scene leader.618 Mr Stephenson’s evidence was that the senior MICA Paramedic in charge of the scene must take responsibility for compliance with the Clinical Practice Guideline.619 Mr Stephenson’s evidence was that he could not understand, on what he knows from a clinical perspective, how Ms Hay as a senior MICA Paramedic, could have decided to cease resuscitation. He considers her conduct a gross breach of the clinical standards adopted by AV.620 The following further exchange occurred between Mr Hull and Mr Stephenson:
“All right. Of those in attendance - no, no, I'll step back from that. I'll withdraw that. Paragraph 18 of your statement, you refer to reading Mr Cudini's report and you say that based on the evidence and findings of that review, it appeared to you in your professional opinion, the patient, it was highly likely to be able to be resuscitated and you do not state that lightly. In saying that, you're not, are you, suggesting that there is fault which should be attributed to Ms Hay in that regard, or are you?---I would say that put myself in the circumstance if I'm the senior MICA paramedic at the scene, to cease that resuscitation, given the very clear signs of life that were present at the time, then, yes, I think I would be responsible for that. I think I'm - it's either I'm either responsible for stopping other people ceasing the resuscitation or, indeed, not ceasing the resuscitation myself.” 621
[232] AV contends that Ms Hay misled the Investigator as to her reasons for ceasing resuscitation and that his bears upon the question of valid reason. 622 AV contends that Ms Hay asserted during the Investigation that the reason for ceasing resuscitation was because the family requested resuscitation to cease, whereas her evidence before the Commission was that cessation of resuscitation was based on futility. Ms Hay denies that she misled the Investigator. She submits that she made it abundantly clear to the Investigator that she considered the resuscitation futile and says this was the reason she gave the Investigator for the cessation of resuscitation.623 Ms Hay submits that AV has taken her answers to the Investigator out of context and that one must go back to question 87 to understand the full context.
[233] Ms Hay tendered the Interview Transcript. 624
[234] The Interview Transcript provides as follows:
“Q87. So that's fine. This is distinct from where it is believed there is no prospect for eventual survival due to injury severity. "Traumatic cardiac arrest outcomes are poor, but not futile."
A Not futile.
Q88. So I just wanted to put that to you and see what you thought about that.
A Yes, absolutely. Not futile, I believe this one was. He suffered a massive hypoxic head injury. If you look at the timeline - I can go through it now.
Q89. Yeah, no, do.
A Yes, all right.
Q90. Yeah.
A 2017, last seen alive. 2036, found hanging. CPR 2039. Ambulance at 2041. 2056, his airway is cleared by Alan Snow, the Hanging Rock crew. So 20 minutes minimum, plus the rest.
Q91. From the point he's found hanging, you're saying?
A Yes.
Q92. As opposed to the time that he was missing before that, yeah?
A Yes. So it is unknown how long between 2017 and 2036 - - -
Q93. Yeah, so it could be longer. Yeah.
A It could be longer, and then you have 26 minutes that the crew had been unable to clear his airway and therefore unable to ventilate him.
Q94. Yeah.
A So he's had no oxygen
Q95 For a minimum of 20 minutes.
A Yes. However, the ceasing of resuscitation was based on the family’s request, not on futility.
Q96. Okay. That’s an important distinction. So it’s based on the family’s request.
A 100 per cent on the – and only because the family asked. Because if the family asked us to continue, we would have continued. If any of the crew had said I’d like to continue, we would have continued.” 625
[235] At question 101 the Interview Transcript provides as follows:
“Q101. So at this point I guess it's unclear, but it's a minimum of 20 minutes. Is there anything that you wanted to say about that?
A No, the query is that we've done - I think it was 23 minutes of resuscitation.
Q102. M'mm.
A Again, it ceased at the family's request.
Q103. Okay.
A And that is the only reason it ceased prior to 30 minutes.” 626
[236] At question 106 the Interview transcript provides as follows:
“Q106. So I've got a question, "What was the reason for ceasing early?" But you've answered that already. If a family asks you to cease resuscitation before that 30 minutes it's not unusual, would you say then, for that to happen? Or is it not unusual in these particular circumstances?
A No, no, it's not - if the family ask you to stop, you stop. So I had a phone conversation with Michael Stevenson (sic) I think in September 2014 about this very issue.” 627
[237] Under cross-examination, Ms Hay agreed that she told the Investigator that resuscitation ceased based on the family’s request. 628 The following exchange occurred between Counsel for AV and Ms Hay:
“Did you tell the truth to the investigator when you said, "The ceasing of resuscitation was based on the family's request, not on the futility?" Did you tell the truth to the investigator?---I don't think I was trying to lie to the investigator. But that is not the truth, the truth was futility.
I didn't ask you whether you were trying to lie. I just asked you whether you were telling the truth. Please just try and answer yes or no? Was that a truthful response to the investigator?---No, I don't think it was truthful. It was based on futility.
So you have misled the investigator, have you?---I guess on those grounds, yes, I have misled the investigator.”
So you made a mistake at that one point, when addressing the investigator. Is that your evidence? "Yes, I may have misled the investigator but it was just a bit of a mistake." Is that your evidence?---That's not my evidence. I think that's a bit flippant.
You're saying I'm being flippant?---I don't actually remember but if I said it on the transcript I'm not going to dispute that I said it and that the answer might not have been - I've forgotten the question. It looks like I didn't - I'm trying to answer this as honestly as I can. It looks like I didn't give the investigator the most honest answer.” 629
[238] The following further exchange occurred between Counsel for AV and Ms Hay:
“Okay, but the fact is you didn't say that just once; you said that more than once to the investigator, didn't you?---I don't - - -
Let me take you to page 75 of the tribunal book, question 101: "So at this point I guess it's unclear but it's a minimum of 20 minutes. Is there anything that you want to say about that?---No, that (indistinct) what we've done. I think it was 23 minutes of resuscitation." 102, the investigator says, "Mmm." You said this: "Again, it ceased at the family's request." So you've misled the investigator twice, haven't you?---Yes, based on reading this, yes, I misled the investigator twice...” 630
[239] The following further exchange occurred between Counsel for AV and Ms Hay:
“MR HARRINGTON: Question 259, "Okay, different scenario", says the investigator. Answer, "Very different scenario", because you had talked about a child - working with children - to get authority to cease resuscitation. Quotes, "I'm aware of that possibility", this is you, "that you can ring a control room, but we ceased only because the family asked"?---So the same thing three times.
Three times?---Yes.
It’s not inadvertence, is it, Ms Hay?---No, no.
It's not inadvertence?---Not inadvertent.” 631
[240] I reject the submission that when read in context Ms Hay told the Investigator that the reason for cessation of resuscitation was futility. Firstly, Ms Hay accepts that she told the Investigator that the reason for the cessation of resuscitation was the family’s request. She agreed that this was not true and that she misled the Investigator three times as to the reason for the cessation of resuscitation. She agreed it was not inadvertent. Secondly, whilst I accept that at Question 88 of the Interview Transcript Ms Hay does say that she considered resuscitation to be futile, she does not say that futility was the reason for cessation of resuscitation. Thirdly, in my view, Ms Hay’s answer to Question 95 is unambiguous and not capable of any interpretation other than an assertion that resuscitation was ceased based on the family’s request, not on futility. For completeness though, I note that the answer to Question 95 is prefaced by the word “however”, which implies that Ms Hay is contrasting her view as to the alleged “massive hypoxic event” suffered by Lachlan resulting in her view of futility, with the actual reason for the cessation of resuscitation. Accordingly, I find that Ms Hay did tell the Investigator that the reason for cessation of resuscitation was based on the family’s wishes. Ms Hay’s evidence is that this was not true. I therefore find that Ms Hay was dishonest in the Investigation on three occasions as to the reason for the cessation of resuscitation.
Summary of factual findings
[241] For the reasons set out above I have found that Ms Hay:
• was the senior MICA Paramedic and scene leader at Lachlan’s Case and in that role was responsible and accountable for managing the scene, dictating Lachlan’s care and the decisions made in relation to that care;
• failed to undertake her own independent assessment of Lachlan’s condition or make her own observations upon arrival at the scene;
• in the absence of having undertaken her own assessment and making her own observations of Lachlan’s condition upon arrival within three minutes of arriving at the scene erroneously formed the view that Lachlan was dead and there were no compelling reasons to continue resuscitation;
• on three occasions dismissed clinical information from Mr Snow as to positive changes in Lachlan’s heart rhythm and ETCO2 levels;
• failed to be aware of changes in Lachlan’s heart rhythm and ETCO2 level during the period of resuscitation;
• made the Artefact Statement and the Adrenaline Driven Statement;
• knew that CPG A0203 required resuscitation to continue for a minimum of 30 minutes;
• directed that resuscitation cease prior to 30 minutes duration in breach of CPG A0203, when there were compelling reasons to continue resuscitation based on Lachlan’s age and signs of life;
• initiated discussion with Mr and Mrs Jorgensen regarding the cessation of resuscitation when resuscitation had not been undertaken for 30 minutes in accordance with CPG A0203 and in circumstances where there were compelling reasons to continue resuscitation based on Lachlan’s age and signs of life.
[242] I shall refer to these findings collectively as the Treatment Findings.
[243] I have found that the evidence of Mr Wakeling, Mr Cudini, Mr Stephenson and Professor Bernard sets out what was required of the senior MICA Paramedic and scene leader to properly discharge her duties on 2 October 2017. I find that Ms Hay did not meet that standard in respect of each of the Treatment Findings.
[244] For the reasons set out above I have also found that Ms Hay:
• made the Horse Statement;
• made the Family Statement; and
• was dishonest during the Investigation as to the reasons for the cessation of resuscitation.
Submissions on valid reason
[245] Ms Hay submitted that there was no valid reason for the dismissal. Firstly, Ms Hay submitted that unless the Commission is satisfied that her conduct on 2 October 2017 constituted serious and wilful misconduct within the meaning of clause 60.5 of the Agreement there cannot have been a valid reason for the dismissal. 632 This submission is premised on the proposition that a dismissal in breach of an enterprise agreement is unlawful and consequently cannot therefore be sound, defensible or well founded (Clause 60 Submission).633 Ms Hay submits that serious and wilful misconduct for the purposes of clause 60.5 of the Agreement is misconduct that is both sufficiently serious to justify summary dismissal under the common law or pursuant to Regulation 1.05 of the Fair Work Regulations 2009 and is conduct where the employee deliberately conducted themselves in a manner that they knew constituted serious misconduct.634 Secondly and in the alternative, Ms Hay submitted that if the Commission considers that a termination in breach of clause 60.5 could be for a valid reason pursuant to section 387(a) of the Act, Ms Hay’s conduct on 2 October 2017 was not sufficient to justify dismissal because:
• she was entitled to rely on information she was given at the scene;
• her actions based on that information were both proper and reasonable;
• she did not fail to take any action that, under the circumstances, could reasonably have been expected of her, or in the alternative, any such failure should properly be regarded as inadvertent or oversight but not so egregious to justify dismissal;
• any material failure by Ms Hay to comply with her obligations in her employment was such that, taking into account her length and record of service and the particular difficulties that Lachlan’s case presented, dismissal was disproportionate and unwarranted. 635
[246] In my opinion, the last-mentioned matter does not go to valid reason but rather to the general consideration of other matters which may be relevant under section 387(h). I will address this issue later in this decision in that context.
[247] Thirdly, Ms Hay submitted, in summary, that what is at issue are properly matters of performance, rather than conduct, and that AV has sought to introduce concepts such as “clinical misconduct” and “behaviour in clinical performance” in order to characterise her actions as conduct and behaviour, to enable it to terminate her employment pursuant to clause 60.5. 636 Absent such an ability, it is submitted that Ms Hay’s conduct on 2 October 2017 is a matter of performance and ought have been dealt with pursuant to clause 60.1 of the Agreement, if properly a disciplinary matter, or by appropriate clinical education and retraining.637 Ms Hay submits that AV must, firstly, make clear which aspects of Ms Hay’s proven conduct on 2 October 2017 constitute misconduct, as opposed to performance, and secondly, demonstrate how that conduct constitutes serious and wilful misconduct within the meaning of section 60.5 of the Agreement638 (Further Valid Reason Submissions).
[248] Fourthly, and in the alternative, if the Commission does not accept that submission, it is submitted that AV must still demonstrate how Ms Hay’s misconduct constituted serious misconduct sufficient to justify her summary dismissal 639 with reference to the proper standard against which Ms Hay’s conduct is to be judged.640 That standard, it is submitted, is that which might reasonably and properly be required of a person in her position, by reference to the expert report and testimony of Dr Flanagan,641 However, Ms Hay accepts that the Horse Statement and the Family Statement are matters of conduct, as opposed to performance.642
[249] Fifthly, at various times Ms Hay submitted that her dismissal was not related to the events of 2 October 2017 but was, in fact, for other reasons, specifically a matter in 2014 in which Ms Hay twice failed to correctly intubate a 28 year old patient who suffered an asthma attack (2014 Matter). 643 In her final written submissions Ms Hay does not now appear to press this as a matter which goes to valid reason, but rather one in respect of which she was not given an opportunity to respond.644 I address this issue below in that context.
[250] I make one further observation regarding Ms Hay’s submissions as to valid reason.
[251] During the course of the proceedings 645 and in her final written closing submissions Ms Hay raised a number of matters in relation to the findings made by the Investigator.646 The statutory task of the Commission is to determine, on the evidence adduced before it, whether there was a valid reason for the dismissal.647 Further, as already noted, it is well-established that a valid reason need not necessarily be the one relied upon by the employer. Accordingly, the findings of the Investigator are not relevant to the Commission’s consideration as to whether there was a valid reason for Ms Hay’s dismissal. Notwithstanding raising these matters, including across a number of paragraphs in her final written closing submissions, ultimately Ms Hay accepts in those submissions that an examination of the validity or otherwise of the Investigator’s findings is not a matter for consideration by the Commission.648
AV’ s submissions
[252] AV submitted that there was a valid reason for the dismissal related to Ms Hay’s conduct. Firstly, AV submits that Ms Hay engaged in serious and wilful misconduct by the profound breach of her obligation to provide comprehensive ambulance patient care in accordance with AV’s operational guidelines to Lachlan on 2 October 2017. 649 AV submits that the breaches comprised the following conduct:
“• a failure to fully and competently assess the objective clinical data when she arrived at the scene;
• a rush to judgment that [Lachlan] was ‘dead’ – within three minutes of arriving at the scene at about 9pm, when he was not so;
• an unprofessional and misleading interaction with [Lachlan’s] parents on the question of continuing resuscitation;
• an inexplicable and closed-minded rejection of critical clinical information from ALS paramedic Mr Alan Snow;
• after 9pm, encouraging Mr Wakeling not to intubate Lachlan when such an intervention was necessary and critical;
• a direction to Ms Mercer to cease administration of adrenaline during active resuscitation;
• a direction and/or encouragement to those paramedics at the scene to cease resuscitation, in respect of a child <18, before the effluxion of 30 minutes and before the 45 minute mark; and
• the making of offensive statements, such as ‘flogging a dead horse’, and ‘not fuck with the family’ at the scene.” 650
[253] Secondly, AV submitted that Ms Hay engaged in serious misconduct by her continued denial of the breaches of AV’s Code of Conduct. 651
Thirdly, AV submitted that Ms Hay consciously and deliberately misled the Investigator in relation to her reason for ceasing resuscitation. AV submit that Ms Hay’s evidence before the Commission was that the reason for cessation was futility, while her evidence to the Investigator was that the reason for the cessation was the family’s request. AV submitted that this dishonesty bears upon the question of valid reason. 652
[255] As to the Clause 60 Submission, AV submits that Ms Hay did engage in serious and wilful misconduct and accordingly clause 60.5 of the Agreement is engaged. Accordingly, no issue as to whether a dismissal in breach of clause 60 could be for a valid reason arises for consideration. 653 Notwithstanding that, AV submitted that the Clause 60 Submission is erroneous. AV submits that a clause in an enterprise agreement made under the Act cannot fetter or place limitations on the will of the Parliament. Parliament has expressed that will through section 387. The task for the Commission under section 387 is to determine whether the decision to dismiss the employee was harsh, unjust or unreasonable, with reference to the matters in section 387.654 Section 387 does not expressly direct the Commission to have regard to any provision of an agreement made under the Act which might apply. AV submits that no question of agreement compliance can be entertained under section 387(a).655 It follows, AV submits, that to assess valid reason by reference to an external consideration, such as compliance with an enterprise agreement, would be to fall into error. AV concedes that compliance with an enterprise agreement might, however, be a relevant consideration under section 387(h).656
Clause 60 Submission
[256] It is well established that for the purposes of section 387(a) it is not necessary to demonstrate conduct sufficiently serious on behalf of the employee to justify summary dismissal in order to demonstrate that there is a valid reason for the employee’s dismissal. 657 Nor is the existence of a valid reason to be assessed by reference to any legal right to dismiss.658 In He v Lewin659 Gray and Mansfield JJ made the following comments in relation to whether there can be a valid reason for dismissal, notwithstanding non-compliance with a contractual right, an award or an agreement:
“In a given case, it would be open to the Commission to determine that there was no valid reason for termination of the employment, even if the employer had a legal right to terminate the employment.
…
Conversely, it would be open to the Commission to find that there was a valid reason, of the kind contemplated by the provision, even if the termination was in breach of the contract of employment, an award or a collective agreement…It would be open to the Commission to proceed straight to the questions it is required to determine ignoring any question of legal rights.”
[257] Accordingly, the majority held that it is open to the Commission to find that there is a valid reason even if the termination is in breach of an enterprise agreement. 660 In Martine Magers v Commonwealth of Australia (Department of Health and Ageing)661 the Full Bench of the Commission referred to a number of authorities and said:
“These cases demonstrate that the existence of a valid reason does not depend on consistency with requirements for termination for other purposes such as the requirement of an enterprise agreement, legislation or the common law. A valid reason is one which is sound, defensible and well-founded. If a termination is inconsistent with some other obligation, that is a factor to be considered under other criteria relevant to the overall consideration in the matter.”
[258] Therefore, whether Ms Hay’s conduct and/or performance amounted to serious and wilful misconduct such as to give rise to a right to dismiss her under section 60.5 of the Agreement does not go to whether there was a valid reason for the dismissal under section 387(a). It may, however, be a relevant consideration to the overall question of whether the termination was harsh, unjust or unreasonable. Accordingly, I reject Ms Hay’s Clause 60 Submission. On this basis, I also reject Ms Hay’s Further Valid Reason Submissions which are premised on an assertion that no valid reason can be found under section 387(a) if such matters are not, properly considered, misconduct to which clause 60.5 attaches. I will address the question of compliance with clause 60.5 of the Agreement in the course of my consideration of section 387(h).
[259] I also address the 2014 Matter below, in the context of my consideration of section 387(b).
Conclusion on valid reason - Statement Findings
[260] Ms Hay properly conceded in her final written submissions that the Horse Statement and the Family Statement were matters of conduct. 662 On the basis of the factual findings I have made above, I am satisfied on the evidence that Ms Hay engaged in misconduct in making the Statements.
[261] I consider that the making of the Statements, in the context of the resuscitation of a 15 year old boy in cardiac arrest as a result of intentionally hanging himself at home, contravened section 3.1 and 4.2 of AV’s Code of Conduct to treat colleagues, patients and families with courtesy and respect. The language used by Ms Hay in the Family Statement is profane and dismissive. The Horse Statement is offensive and debasing. Ms Hay’s conduct fell within the conduct proscribed by the Code of Conduct. A breach of policy may constitute a valid reason for dismissal. 663 Generally, it is relevant to consider the reasonableness of the policy. However, the reasonableness of the Code of Conduct was not in contest. Ms Hay was aware of the Code of Conduct, that it applied to her employment with AV and that she was bound by it. Breach of the Code of Conduct constitutes a valid reason for dismissal. In these circumstances I consider it unnecessary to consider whether Ms Hay’s conduct in making the Statements also contravened the Professional Conduct Policy.
[262] I also consider that Ms Hay’s conduct in making the Statements constituted a valid reason for dismissal even in the absence of the Code of Conduct. I consider the Statements, in the context in which they were made, to be a very serious matter. I consider they are both highly inappropriate and offensive and to use Ms Hay’s own words, disgusting. 664 The making of the Statements in the circumstances in which they were made provided AV with a sound, defensible, well-founded reason to dismiss Ms Hay.
Conclusion on valid reason – Dishonesty During Investigation
[263] I have also found that Ms Hay was dishonest during the course of the Investigation. As an employee of AV, Ms Hay had an obligation to answer the Investigator’s questions honestly. She conceded she did not. She was dishonest with the Investigator as to a significant matter; the reason for the cessation of resuscitation. I am satisfied that in so doing Ms Hay engaged in misconduct. I consider this to also constitutes a valid reason for dismissal.
Conclusion on valid reason - Treatment Findings
[264] Ms Hay submits that other than the Statements, what is at issue are matters of performance, rather than conduct and as a consequence, in summary, can found no valid reason in circumstances where Ms Hay was dismissed for serious and wilful misconduct pursuant to clause 60.5. I accept that matters of Ms Hay’s professional conduct on 2 October 2017 go to how, and the standard to which, Ms Hay discharged her duties and responsibilities as scene leader and a MICA Paramedic and on that basis may be considered, prima facie, matters of performance. However, there is not always a clear division between poor performance and conduct. Deficient performance may constitute misconduct, including serious misconduct justifying immediate dismissal. I return to these matters below. They are not presently relevant. The task of the Commission under section 387(a) is to determine whether there was a valid reason for dismissal related to the employee’s conduct or capacity. Matters as to whether that reason was in compliance with other requirements or was of such a standard as to warrant summary dismissal for misconduct are not relevant to the consideration of the question of valid reason. Such matters are to be considered under section 387(h).
[265] My reasoning in relation to the Treatment Findings is set out above. I have found that in numerous respects Ms Hay failed to meet the standard required of her as scene leader and MICA Paramedic. I consider that in so doing, she failed to discharge the core competencies of her role as set out in the Position Description, including in relation to focusing on safety, identifying issues, patient and customer focus and professionalism, to the standard required of her. I also find that in dismissing the clinical information provided to her by Mr Snow, Ms Hay failed to interact effectively with other ambulance teams to ensure that delivery of patient care was optimised, and in so doing did not meet a key deliverable of her role, as set out in the Position Description, to the standard required of her. I further find that by directing resuscitation cease in breach of CPG A0203 she failed to provide comprehensive ambulance patient care in accordance with AV’s Clinical Practice Guidelines and in so doing did not meet a further key deliverable of her role, as set out in the Position Description, to the standard required of her.
[266] Of particular significance is Ms Hay’s breach of CPG A0203. Ms Hay knew she was required to comply with CPG A0203. She knew that CPG A0203 required resuscitation continue for a minimum of 30 minutes and that there was a compelling reason to continue based on Lachlan’s age alone. I have also found that there was a compelling reason to continue resuscitation based on signs of life. Notwithstanding that, Ms Hay directed that resuscitation cease in breach of CPG A0203.
[267] I consider Ms Hay’s breaches of her obligations as a MICA Paramedic to be profound and significant. I consider those breaches provided AV with sound, defensible and well-founded reasons for dismissal related to Ms Hay’s capacity.
Conclusion on valid reason – continual denial of conduct in breach of AV’s Code of Conduct
[268] In its final written closing submissions AV contends that Ms Hay engaged in serious misconduct by her continued denial that she breached her obligations to provide comprehensive ambulance patient care on 2 October 2017. AV contend that such conduct is in breach of the Code of Conduct. However, whilst such contentions were advanced, no particular submissions in support of them were made. In my view, on the basis of the material before the Commission, this contention must be rejected.
Notification of reasons for dismissal (section 387(b))
[269] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reason for dismissal. In order to tell against a finding that the dismissal was unfair, notification of the reason for dismissal should occur before the decision to dismiss is made, 665 and be made in explicit, plain and clear terms.666
[270] In her Outline of Submissions 667 Ms Hay acknowledged that she was notified of the reasons given for her dismissal. However, in her final written closing submissions Ms Hay contends that AV now seeks to rely upon new or varied allegations in respect of which Ms Hay was not notified nor given an opportunity to respond.668 Ms Hay submits that these new or varied allegations are in addition to AV’s “undisclosed reliance on the 2014 performance issue”, which she says was an important if not pivotal consideration in its decision to take disciplinary action against Ms Hay.669
[271] AV submits that there are no new or varied allegations. It says that the focus was, and is, Ms Hay’s professional conduct as a senior Paramedic on 2 October 2017. AV submits that the only new “reason” is the viva voce evidence given by Ms Hay in the Commission as to misleading the Investigator.
[272] The matter which section 387(b) requires be taken into account is whether Ms Hay “was notified of that reason”. The use of the word “that” in section 387(b) requires consideration of whether Ms Hay was notified of the reasons for dismissal which I have been found to be valid reasons for the purposes of section 387(a).
[273] It is uncontested that AV put the Allegations to Ms Hay in writing on 14 March 2018. On 24 September 2018 Mr Rogers advised Ms Hay, in writing, of the outcome of the Investigation including specifically identifying which Allegations had been substantiated, the proposed disciplinary action to be taken and inviting her to respond to the findings of the Investigation and the proposed disciplinary action (Show Cause Letter). By letter dated 21 February 2019, Mr Rogers confirmed the disciplinary outcome and the termination of Ms Hay’s employment.
[274] The reasons AV now advances for Ms Hay’s dismissal are not articulated in the same form as the Allegations which were put to Ms Hay and, in my view, do include certain new matters. However, section 387(b) requires consideration of whether Ms Hay was notified of the reasons for dismissal which I have been found to be valid reasons for the purposes of section 387(a). With three exceptions, I consider that the reasons I have found to constitute a valid reason for Ms Hay’s dismissal are included in the substance of the Allegations put to Ms Hay on 14 March 2018. I consider nothing turns on the fact that the Allegations are somewhat differently phrased. I consider the Allegations put Ms Hay on notice of the allegations made against her. Those reasons not included in the substance of the Allegations are firstly, that Ms Hay failed to independently assess and make her own observations as to Lachlan’s condition upon arrival at the scene and that Ms Hay formed the rushed view that Lachlan was dead within three minutes of arrival at the scene (collectively, Treatment Reasons) and secondly, that Ms Hay deliberately misled the Investigator.
[275] Ms Hay was not notified of the Treatment Reasons. However, in all the circumstances, including what I consider to be the egregious failure of Ms Hay to discharge her duties as the senior MICA Paramedic on scene on 2 October 2017, I consider no unfairness arises from this failure.
[276] As to Ms Hay misleading the Investigator, this only became apparent after Ms Hay’s evidence before the Commission and Ms Hay was therefore not notified of this reason, nor could she have been.
[277] The Investigation found that Ms Hay did not make the Artefact Statement, the Family Statement or the Horse Statement. Accordingly, AV did not rely upon these matters as reasons for Ms Hay’s dismissal and accordingly, she was not notified of these as reasons for her dismissal. As set out above, I have reached a different conclusion in relation to these matters. Although not relied upon as a reason for dismissal, the Artefact Statement, the Family Statement and the Horse Statement were included in the Allegations put to Ms Hay in writing on 14 March 2018. She was clearly on notice of these allegations and responded to each of them during the Investigation. She denied that she made these statements and has continuously maintained that denial. In these circumstances, I am satisfied that no unfairness arises from any failure to notify Ms Hay of the Artefact Statement, the Family Statement or the Horse Statement as reasons for her dismissal.
[278] Ms Hay submits that AV undisclosedly relied upon the 2014 performance matter as a reason for Ms Hay’s dismissal. Ms Hay submits that this matter features significantly in the evidence of Mr Stephenson, Mr Cudini and is also included in the evidence of Professor Bernard. 670 That matter involved Ms Hay’s attendance at a scene where she twice failed to correctly intubation a 28 year old patient who suffered an asthma attack. The patient died. Ms Hay was found to have repeatedly dismissed the clinical advice of other Paramedics at the scene.
[279] AV submits that there was no undisclosed reliance on the 2014 Matter. It submits that Ms Hay filed material asserting that “her record was clean” and that no matter of significance had previously been raised with her performance. AV submits that is inaccurate and, I infer, filed material to support that proposition. 671
[280] It is readily apparent that the 2014 Matter was not included in the Allegations, did not form part of the Investigation and was not expressly relied upon as a reason for dismissal.
[281] At paragraph four of her witness statement Ms Hay says that she has received a number of recommendations during her employment at AV and also that she was the subject of several clinical reviews during her employment. In that context she makes reference to being required to undertake a three-month Clinical Induction, Bridging or Remedial program (CIBoR) in 2014. 672 This is a reference to the 2014 Matter.
[282] In his witnesses statement, at paragraph 44, under the heading “Applicant’s statement” Mr Stephenson responds specifically to paragraph four of Ms Hay’s witness statement and sets out the circumstances that led to Ms Hay undertaking the CIBoR as a result of 2014 Matter and the removal of her single responder status as a consequence of that clinical review.
[283] Under cross-examination, Mr Stephenson gave evidence that he was not directly involved in the clinical investigation into the 2014 Matter, nor in the decisions which were made as a result of it. He said however, that he was made aware of it at the time. 673
[284] Mr Stephenson gave further evidence under cross-examination that whilst clinical profiling of Ms Hay was conducted following the Cudini Report into Lachlan’s Case, the referral of Ms Hay’s conduct on 2 October 2017 to the PCU was on the basis of “this case” 674 and that “this matter stood on its own”.675 In relation to matters arising from the clinical profiling and the 2014 Matter, the following exchange occurred between Mr Hull and Mr Stephenson:
“Sure, but the conduct review is concerned only with the comments that you say are made on the night, is it not?---That's correct, yes.
Once again, you say that the clinical review, the profiling, that had occurred?---That's my understanding, yes.
What was the outcome of that?---Well, I'm not fully aware of it but I do know that there were concerns raised previously about Ms Hay's practice and that clinical profiling identified some of those concerns, one of them, indeed, a very serious concern.
Was any of that ever put to Ms Hay?---I don't know whether it was or not.
Well, I'll suggest to you that it was never put to Ms Hay?---Yes, and I would suggest to you that that was entirely reasonable because this matter stood on its own. 676
…
Right, so we have that in the clinical review department and we have the comments in the PCU department but what happens in this matter is that everything that's over in the clinical review department gets transferred to the professional conduct unit?---Yes.
How does that happen?---Well, it's - I think it's rather obvious how it happens. There are - - -
Well, tell me?---There are issues of professional misconduct and issues of clinical misconduct. I'm not sure that those two things are able to be separated ultimately because things have gone catastrophically wrong here and ultimately the case has to be reviewed in toto and someone has to do that and in our setting, in our environment, the professional conduct unit would do that as the total responsibility with the advice of clinical people whilst they're doing that, so it has to come together at some stage and it's been brought together.” 677
[285] Further, his evidence was that Mr Cudini is not in a position to determine what is referred to the PCU and further that it would be unusual for a Clinical Support Officer to make a recommendation about a matter proceeding to the PCU on the basis of clinical care. 678
[286] In his witness statement, Mr Cudini refers to the 2014 Matter and states that “This appeared to be another case where other paramedics in attendance repeatedly questioned Ms Hay about whether she had performed intubation correctly, and Ms Hay, on multiple occasions, was dismissive of and ignored the other paramedics' advice.” 679 Under cross-examination, Mr Cudini conceded that he had no direct involvement in that matter, nor had he read the case review for that matter. However, Mr Cudini gave evidence that he was made aware of the matter by the clinical support officer who reviewed the 2014 Matter.680 Under cross-examination Mr Cudini said that he did not reach a conclusion about the events of 2 October 2017 based on his knowledge of previous matters. He gave evidence that the role that clinical profiling has in a clinical review is that of giving the reviewer insight into whether “this is a recurring thing or it’s a new thing”.681 He gave evidence that whilst identifying previous cases where types of behaviours may have potentially occurred is part of the process, it is not the role of a clinical support officer to prove what happened at a previous case.682
[287] Professor Bernard’s evidence is that he is a member of the Clinical Incident Review Committee (CIRC), which meets monthly to review clinical and/or operational issues that may have resulted in adverse outcomes for patients. 683 On 8 February 2018, the CIRC considered the Cudini Report and made a number of recommendations, including a review of Ms Hay’s authority to practice.684 Those recommendations were communicated to Mr Stephenson to determine and assess. CIRC has no role in recommending disciplinary action.685 Under cross-examination Professor Bernard gave evidence that it was his recollection that he was told there had been other cases involving Ms Hay in the past and that, together with this particular case, this meant that the case would be referred to the PCU.686 Professor Bernard further gave evidence under cross-examination that his understanding as to the reason for the PCU taking the action it did was due to other cases involving Ms Hay.687
[288] Mr Rogers is AV’s Chief Operating Officer. His evidence is that he made the decision to terminate Ms Hay’s employment. 688 He gave evidence that he made the decision that termination was the appropriate disciplinary action after considering the briefing note provided to him by the PCU dated 13 September 2018, CPG A0203, the Allegations and a summary of the Investigator’s findings.689 His evidence was that he did not have any role in initiating the Investigation690 and was unaware of the matter until 13 September 2018.691
[289] I accept the evidence of Mr Stephenson, Professor Bernard, Mr Cudini and Mr Rogers set out above. That evidence establishes that Mr Stephenson referred Ms Hay’s conduct to the PCU to investigate on the basis of the events of 2 October 2017 alone. Mr Cudini did not have the authority to refer matters to the PCU so any view he may have had about the 2014 Matter is not relevant. Further, his evidence was that he did not reach the conclusion in the Cudini Report based on any previous matters. The CIRC and Professor Bernard had no role in disciplinary matters. While Professor Bernard’s evidence is that it was his understanding that the PCU’s decision to commence an investigation into Ms Hay’s conduct on 2 October 2017 was, in part, due to the 2014 Matter, there is no evidence before the Commission to support that understanding. Additionally, even if it were the case that the 2014 Matter was a consideration in the PCU’s decision to commence an investigation, I do not consider it was a reason for Ms Hay’s dismissal. The 2014 Matter was not included in the Allegations. The Allegations were investigated by an external investigator. The only matters before the Investigator were the Allegations. The Investigator’s findings were provided to Mr Rogers. Mr Rogers made the decision to dismiss Ms Hay. On the basis of the Investigator’s findings Mr Rogers considered that Ms Hay had engaged in serious misconduct justifying dismissal. Mr Rogers had no involvement in this matter prior to being provided with the briefing materials from the PCU on 13 September 2018. In my view, there is no evidence before the Commission upon which a finding could be made that the 2014 Matter was undisclosedly relied upon by AV to dismiss Ms Hay.
Opportunity to respond to reasons for dismissal (section 387(c))
[290] The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a commonsense way: the focus of the consideration is whether the employee is treated fairly, rather than any formality. 692
[291] It is uncontested that on 28 June 2018 Ms Hay, together with her legal representative Mr Hull, attended an interview with the Investigator and responded to the Allegations. On 6 October 2018 Ms Hay, via her legal representative, provided her response to the Show Cause Letter.
[292] Ms Hay was therefore given an opportunity to respond to those reasons of which she was notified. For the reasons set out earlier at paragraph [277] I am also satisfied that Ms Hay was given an opportunity to respond to the Artefact Statement, the Family Statement and the Horse Statement. Accordingly, in light of my findings set out above, Ms Hay was therefore not given an opportunity to respond to the Treatment Reasons. However, in all the circumstances, including what I have found to be the egregious failure of Ms Hay to discharge her duties as the senior MICA Paramedic on scene on 2 October 2017, I consider no unfairness arises from the absence of an opportunity to respond to the Treatment Reasons.
[293] As to Ms Hay misleading the Investigator, this only became apparent after Ms Hay’s evidence before the Commission and Ms Hay therefore was not, and could not have been, given an opportunity to respond to this reason.
Unreasonable refusal to allow a support person present? (section 387(d))
[294] It is not contended that AV unreasonably refused to allow Ms Hay to have a support person present.
Warning about unsatisfactory performance before dismissal (section 387(e))
[295] If the dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee was warned about the unsatisfactory performance prior to dismissal.
[296] As set out above, Ms Hay submits that all of the matters relied upon by AV, other than the Statements, are properly regarded as matters of performance. She submits that she was not warned in respect of any of those matters. 693
[297] The valid reasons I have found to exist in relation to the Statements and misleading the Investigator relate to conduct. It was not necessary for AV to have warned Ms Hay about these matters prior to dismissal.
[298] For the reasons set out below in my consideration of section 387(h), I find that the Treatment Findings also constitute misconduct by Ms Hay. Accordingly, it was not necessary to warn Ms Hay about these matters prior to dismissal. However, should I be wrong in that and the Treatment Findings are more properly considered matters of performance, I consider that Ms Hay’s performance in respect of those matters was so far below the standard of performance required of her so as not to require that she be warned prior to her dismissal.
Size of the enterprise and dedicated human resources (section 387(f) and(g))
[299] No submissions were made as to the relevance of these considerations in the present matter. Clearly AV is an organisation with considerable resources, including dedicated human resources specialists. The size of the employer’s enterprise would have no adverse impact on the procedures followed in effecting dismissal. One would expect that allegations of misconduct would be extensively investigated, as they were here. There was “no absence of dedicated human resources management specialist or expertise” and accordingly the consideration in section 387(g) has no application.
Any other matters the Commission considers relevant (section 387(h))
[300] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.
[301] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation 694 the Full Bench stated that:
“That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be ‘relevant matters’ that do not bear upon whether there was a ‘valid reason’ for the dismissal but do bear upon whether the dismissal was ‘harsh, unjust or unreasonable’.” 695
[302] The Full Bench continued:
“Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. (This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct).
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. (This includes matters such as the length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents).” 696
[303] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively, 697 however relevant factors that can be taken into account in determining harshness clearly include matters personal to the employee.698 Further, the failure of an employee to comply with the policies and procedures of an employer (which may found a valid reason to dismiss) does not prevent the Commission from finding that the dismissal was harsh, unjust or unreasonable.699
Clause 60.5 of the Agreement
[304] Clause 60 of the Agreement is headed “Disciplinary Procedures” The full text of clause 60 is set out earlier in this decision at paragraph [66]. In summary, subclauses 60.1 – 60.4 provide for dismissal following a series of warnings and other associated steps. Clause 60.5 provides as follows:
60.5 Dismissal of an employee may still occur for acts of “serious and wilful misconduct.”
[305] Notwithstanding the use of quotation marks in clause 60.5, no definition of serious and wilful misconduct is contained in the Agreement.
[306] Ms Hay submits that the phrase “serious and wilful misconduct”, as used in clause 60.5, is intended to be something other than serious misconduct, as that term is understood at common law and defined in the Fair Work Regulations 2009. In summary, Ms Hay submits that serious and wilful misconduct in clause 60.5 of the Agreement is misconduct that is both:
(a) sufficiently serious to justify summary dismissal under the common law or pursuant to the Fair Work Act (relying on Regulation 1.07); and
(b) intentionally committed by the employee concerned, in circumstances where the employee was aware or ought to have been aware, of the severity of their conduct. 700
[307] In its Outline of Argument, AV submitted that Ms Hay engaged in serious misconduct as defined in Regulation 1.07 701 and did not expressly refer to clause 60.5. This does not appear to be pressed in AV’s final written closing submissions which contain no submission as to the meaning to be given to clause 60.5. In response to a question from the Bench, AV submitted that wilful in the context of clause 60.5 means not inadvertent or accidental.702
[308] The principles of interpretation of an enterprise agreement are well established 703 and it is not necessary for them to be repeated in full here. The interpretation of an agreement begins with the consideration of the ordinary meaning of the relevant words, construed in the context of the agreement as a whole.
[309] Clause 60.5 is contained in Part 8 of the Agreement, which is headed “Disciplinary Procedure”. In addition to clause 60.5, the phrase “serious and wilful misconduct” is also used in a number of other provisions in the Agreement relating to employee entitlements. 704 However, the phrase “serious misconduct” is also used in the Agreement, such as in clause 65.2 which refers to an employee whose “employment is terminated as a consequence of serious misconduct.” Further clause 19.19(e) of the Agreement deals with termination of employment without notice or payment in lieu of notice in the following terms:
“The period of notice in this clause shall not apply in the case of dismissal for conduct that justifies instant dismissal including inefficiency within the first fourteen days, neglect of duty or misconduct and in the case of casual employees, apprentices or employees engaged for a specified period of time or for a specified task or tasks.”
[310] Accordingly, there is a lack of consistency in the drafting of the Agreement in this regard. The terms misconduct, serious misconduct and serious and wilful misconduct appear to be used throughout the Agreement without particular precision. In my view, when read in the context of the Agreement as a whole, I do not consider the use of the phrase serious and wilful misconduct in clause 60.5 of the Agreement does, as submitted by Ms Hay, indicate that the clause was intended to capture something other than serious misconduct, as that term is ordinarily understood and applied.
[311] Further, whilst I accept that conduct justifying summary dismissal at common law or under the Regulations may indeed also constitute “serious” misconduct for the purposes of clause 60.5, I can see nothing in a plain reading of the clause, which requires that qualification in the manner contended for by Ms Hay. Additionally, it is entirely unclear to me how the definition of serious misconduct under the Regulations is said to apply to the construction of clause 60.5. I consider clear language evincing such an intention would be required. Further, Regulation 107(2)(a) provides that serious misconduct includes wilful or deliberate behavior by an employee that is inconsistent with the continuation of the contract of employment. In light of Ms Hay’s submission that in addition to the misconduct being ‘serious’, under clause 60.5 it is also required to be separately “willful” in accordance with the meaning submitted by her, the construction advanced by Ms Hay is tautologous and is rejected.
[312] As to Ms Hay’s submission regarding the meaning to be given to the word wilful in clause 60.5, I do not consider there is anything in clause 60.5, when read in the context of the Agreement, to indicate that wilful ought not be given it ordinary meaning, being deliberate conduct and not accidental or inadvertent conduct.
Did Ms Hay engage in serious and wilful misconduct for the purposes of clause 60.5 of the Agreement?
[313] In my view, the making of the Statements was a serious matter, and of sufficient gravity to constitute serious misconduct. The language used by Ms Hay in the Family Statement was profane and dismissive. The Horse Statement, in the context of the resuscitation of a 15 year old boy who has hanged himself, was both highly inappropriate and deeply offensive and debasing. I do not consider that the seriousness of the Statements is in any way lessened because the family did not hear them. The Statements were not inadvertent. In my view, the conduct clearly contravened AV’s Code of Conduct. The Code of Conduct applied to Ms Hay’s employment and she was required to comply with it. Further, in my view, even absent the obligations under the Code of Conduct, in the circumstances in which they occurred the Statements are manifestly unacceptable and offensive and amount to serious and wilful misconduct for the purposes of clause 60.5 of the Agreement.
[314] I consider Ms Hay’s dishonesty during the Investigation as to the reason for the cessation of resuscitation to also amount to serious misconduct. Ms Hay had an obligation to answer the Investigator’s questions honestly. She did not. Her dishonesty was not inadvertent. Such conduct is inconsistent with Ms Hay’s obligations as an employee. Further, Ms Hay’s dishonesty was about a significant matter. I consider that such dishonesty amounts to serious and wilful misconduct for the purposes of clause 60.5 of the Agreement.
[315] I also consider that Ms Hay’s professional conduct on 2 October 2017 was so far below the standard of a competent MICA Paramedic and scene leader as to constitute misconduct. Whilst I accept Ms Hay’s submission that matters of her professional conduct on 2 October 2017 are, prima facie, matters of performance, I do not accept that matters of performance cannot, therefore, constitute misconduct. There is not always a clear division between poor performance and misconduct. It is indisputable that as an employee of AV, Ms Hay was required to exercise due care and skill in the performance of her duties. Neglect of a serious nature in the discharge of duties, gross negligence or recklessness may constitute serious misconduct. In my view, Ms Hay’s failure to discharge her duties on 2 October 2017 was of such an egregious and serious nature as to constitute serious misconduct. I have found that Ms Hay failed to independently assess and make her own observations of Lachlan upon arrival at the scene. I have further found that in the absence of that assessment, within three minutes of arrival at the scene she formed the erroneous view that Lachlan was dead. I have found that she dismissed clinical information regarding positive changes in Lachlan’s presentation on at least three occasions. She failed to identify the manifestation of those changes in Lachlan’s condition on the Zoll. At no time did she identify a sinus rhythm or an end tidal reading on the Zoll. Those indicia were present, visible and objectively ascertainable. Ms Hay raised the cessation of resuscitation with Mr and Mrs Jorgenson prior to resuscitation having been undertaken for 30 minutes, in circumstances where there was a compelling reason to continue resuscitation, based on Lachlan’s age alone. She directed resuscitation cease before the minimum period of 30 minutes duration when there were compelling reasons to continue resuscitation based on both Lachlan’s age and signs of life. Such a direction contravened CPG A0203. Ms Hay was aware of CPG A0203, she knew she was required to comply with it, and she knew there was at least one compelling reason to continue resuscitation. Ms Hay’s professional conduct on 2 October 2017 was aberrant and profoundly inconsistent with her duty to exercise due skill and care in the discharge of her duties. I consider Ms Hay’s discharge of her duties to be seriously neglectful and so inconsistent with the standard of performance of a competent MICA Paramedic and scene leader as to constitute serious and wilful misconduct for the purposes of clause 60.5 of the Agreement.
[316] For the above reasons, I consider that Ms Hay engaged in serious and wilful misconduct for the purposes of clause 60.5 of the Agreement. Further, I consider that Ms Hay’s conduct in relation to each of the above three matters, considered in isolation, constitutes serious and wilful misconduct justifying AV’s dismissal of Ms Hay pursuant to clause 60.5 of the Agreement. Had AV dismissed Ms Hay for any one of the above matters I would not consider that in breach of clause 60.5 of the Agreement.
Length of investigation
[317] Ms Hay contends that AV “strung out” the investigation of Lachlan’s Case and left Ms Hay “in limbo”. Ms Hay contends that AV dealt with her in “a callous and especially inconsiderate manner”.
[318] I have taken into account that the period of review and investigation into the treatment provided to Lachlan on 2 October 2017 was lengthy. Ms Hay was placed on alternative duties on 30 November 2017, suspended on full pay on 14 March 2018 and her dismissal was effective 21 February 2019. That is clearly a significant period of time. I accept that it must have been difficult for Ms Hay to not attend work or communicate with her colleagues for this period under the shadow of the Investigation and the uncertainty of its outcome.
[319] However, contrary to the contention of Ms Hay, I do not consider that AV strung out the Investigation or has dealt with Ms Hay in a callous and especially inconsiderate manner. Between Ms Hay being placed on alternate duties at the end of November 2017 and the Allegations being provided, a clinical review was undertaken. I accept that this took a number of months, however, it seems to me entirely proper that detailed consideration of the clinical aspects of Lachlan’s treatment ought have been undertaken before any allegations of misconduct were put to Ms Hay. The matters at issue were of the utmost seriousness and, in my view, required careful consideration. Given the seriousness of the Allegations and the potential effect adverse findings may have on Ms Hay’s employment with AV, I consider it be both prudent and appropriate that an external investigator was appointed to investigate the Allegations. On 15 June 2018 Ms Hay lodged a dispute notification related to the Investigation. That dispute was resolved before the Commission on 25 June 2018. Ms Hay thereafter attended an interview to provide her response to the Allegations on 28 June 2018. The Investigator provided the Investigation Report to AV on 30 August 2018. I do not consider this chronology discloses any unreasonable delay on behalf of AV in the conduct of the Investigation.
[320] On 24 September 2018 AV provided a Show Cause Letter to Ms Hay. Accordingly, once in receipt of the Investigator’s findings, AV progressed the matter in a timely manner. Ms Hay provided her response to the Show Cause Letter and subsequently lodged three further dispute notifications with the Commission on 6 October 2018, 7 November 2018, 1 February 2019 and 12 February 2019. On 17 January 2019 AV made application to the Commission to dismiss Ms Hay’s second dispute notification pursuant to section 587(1)(c) of the Act. On 19 February 2019 the Commission granted AV’s application under section 587(1)(c) and dismissed the second, third and fourth dispute notification. Mr Rogers evidence, which I accept, was that AV determined not to proceed with Ms Hay’s termination of employment until the Commission processes and the various applications had been determined. 705 On 20 February 2019 Ms Hay was invited to attend a meeting to discuss the disciplinary outcome of the Investigation. At Ms Hay’s request this was conveyed to her in writing on 21 February 2019. Accordingly, the delay from 6 October 2018 until 21 February 2019 was primarily as a result of Ms Hay exercising her rights under the Agreement (as she is entitled to do) and AV determining that it was best practice to await the resolution of those dispute by the Commission. Once the Commission decision was handed down on 19 February 2019, AV moved immediately to terminate Ms Hay’s employment.
[321] I do not consider there is any unfairness arising from these matters.
Actions of other attending paramedics
[322] I have also taken into consideration that other employees, most notably Ms Mercer and Mr Wakeling, also made errors in the delivery of Lachlan’s care on 2 October 2017, however, only Ms Hay’s employment has been terminated. I have earlier dealt with Ms Hay’s submission that if she is to be accountable for the cessation of resuscitation in breach of CGP A0203, then so must all the attending Paramedics. Whilst all Paramedics attending on 2 October 2017 were required to discharge their duties with due skill and care, Ms Hay was the most senior MICA Paramedic at the scene and the scene leader. She was ultimately responsible for Lachlan’s care and management and the decisions made at the scene. Accordingly, the requirements of Ms Hay on 2 October 2017 are distinguishable from, and exceed those of, the other attending Paramedics. In those circumstances, and in light of the manifest failings in the discharge of Ms Hay’s duties and the delivery of care to Lachlan on 2 October 2017, I do not consider that any unfairness arises from this consideration.
[323] Further, I have also taken into consideration that Ms Hay, in contradistinction to Ms Mercer and Mr Wakeling, has at no time accepted that she was in error or failed in any way to properly discharge her duties on 2 October 2017. She has at all times maintained that she didn’t fail, 706 made clinically appropriate decisions707 and that her mistake was assuming that she received a proper handover from Ms Mercer.708 Accordingly, Ms Hay has shown no insight into her failings or taken any responsibility for her role in the events of 2 October 2017. In these circumstances, I do not consider any unfairness arises from Ms Hay’s singular termination of employment.
Personal circumstances of Ms Hay
[324] I have considered Ms Hay’s age, length of service, employment history and her personal and economic circumstances. I have taken into consideration that dismissal has had a very significant effect on Ms Hay. However, I am not satisfied that these factors negate the seriousness of the misconduct engaged in by her on 2 October 2017.
Proportionality and summary dismissal
[325] The proportionality of the dismissal to the conduct that is the subject of the valid reason is a matter to be considered in connection with section 387(h). Clearly a dismissal may be harsh because it is disproportionate to the gravity of the misconduct on which the employer acted.
[326] For the reasons set in paragraphs [313]-[316], I have found that Ms Hay engaged in serious and wilful misconduct within the meaning clause 60.5 of the Agreement. Even considered in isolation, in my view, each of the matters I have found to be a valid reason constitutes serious and wilful misconduct. I consider Ms Hay’s conduct on 2 October 2019 was a matter of the utmost seriousness.
[327] In light of this and taking into account all of the circumstances, I consider that AV’s summary dismissal of Ms Hay’s was not disproportionate to her conduct.
Conclusion
[328] Taking into account all of the evidence and the considerations of section 387 of the Act and based on my factual findings, I consider that the dismissal of Ms Hay was not harsh, unjust or unreasonable.
[329] Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
N Harrington of Counsel for the Respondent, with the Victorian Government Solicitor’s Office.
P Hull for the Applicant.
Hearing details:
2019.
Melbourne:
June 5 to 7, July 24 to 26, September 13.
Final written submissions:
Applicant, 23 August 2019 and 12 September 2019 (amended).
Respondent 10 September 2019.
Printed by authority of the Commonwealth Government Printer
<PR718620>
Adrenaline
Adrenaline is a hormone which increases diastolic blood pressure, which results in a greater volume of blood returning back to the heart from the peripheral blood vessels. It also increases the force of the heart's contractions and increases the heartbeat rate. The duration of adrenaline's action on a patient peaks at about three to five minutes. As such, paramedics administer adrenaline every four minutes during a resuscitation.
Artefact
Electrical interference with the ECG, generally caused by external triggers. 710
Asystole
Where the heart has no mechanical or electrical activity and is not contracting. Appears as a 'flat-line' on an ECG.
CPR
Cardiopulmonary resuscitation.
Cyanosis
A blue discolouration of the skin. 711
ECG
Electrocardiogram.
Electrical activity
The current that is required to initiate a contraction of the heart.
End tidal CO2 (ETCO2)
The amount of carbon dioxide that the body expels via the lungs during exhalation. An increase in ETCO2 correlates with ROSC and an increase in cellular metabolic activity in cardiac arrest patients.
ETI / ETT
Endotracheal intubation. This involves the placement of a plastic tube, known as an endotracheal tube (ETT) 712 into a patient's trachea to administer oxygen.713 The ETT is inserted through the larynx into trachea, where the cuff of the ETT is pumped up. The ETT is then secured with tape or a tie, plugged into the same ventilation gear as the LMA through which the ETCO2 reading will continue.714
Mechanical activity
The physical pumping of the heart.
Narrow ventricular complexes
A type of electrical heart rhythm that can result in muscular contraction of the heart. This may also be referred to as QRS complexes, narrow complexes or PAC (premature atrial contraction).
Pulseless electrical activity (PEA)
Where there is identified electrical activity in the heart, which either does not result in mechanical activity and therefore no blood from the heart with each contraction, or results in reduced mechanical activity that generates low blood flow from the heart with every heart contraction and does not manifest the presence of a palpable pulse (this is known as a low (blood) flow state).
ROSC
Return of spontaneous circulation. Where the heart functions electrically and mechanically without CPR and a level of blood flow is restored to the body and brain.
Sinus bradycardia
The normal electrical rhythm of a youth’s functioning heart, however the heart rate is lower than normal (normal heart rate is 60 – 100 beats per minute at rest).
Sinus rhythm
The normal electrical rhythm of a functioning human heart.
LMA
Laryngeal Mask Airway, sometimes referred to as an i-Gel. 716 It is a device used by advanced life support paramedics to ventilate a patient.717 The LMA slides down in behind the tongue and covers the oesophagus so that oxygen goes down the trachea and into the lungs.718 Once inserted, the LMA helps to prevent vomit going into the lungs and ensure that air is ventilated into the lungs rather than the stomach.719 The LMA is secured by either holding or taping it in place.720
Zoll Monitor
Zoll monitors are devices that, among other things, display and record real-time ECG data 721 and ETCO2 data.722 The data displayed on the Zoll monitor screen is represented as a yellow graph.723 The ECG data is displayed above the ETCO2 data on the screen.724
1 Mr Kennedy was granted leave to give evidence as to the equipment used by Paramedics. No witness statement was filed by Mr Kennedy
2 Exhibit R23, Annexure DC-1 (pg.1-2)
3 Ibid (pg.2-3)
4 Ibid (pg.11)
5 Exhibit A3, Annexure LH 6
6 AV’s Form F3 Employer's response to unfair dismissal application, question 3.2 at [12–18]
7 Transcript PN5721
8 Exhibit R18 at [1-4]
9 Transcript PN4977
10 Exhibit R16 at [1]
11 Transcript PN4978
12 Exhibit R16 at [4]
13 Exhibit R23 at [1]
14 Ibid at [2-3]
15 Transcript PN6542
16 Ibid
17 Fair Work Act 2009 (Cth), s.591
18 Pearse v Viva Energy [2017] FWCFB 4701 at [14]
19 Applicant’s amended closing submissions at [42]
20 Ibid
21 Exhibit R23, Annexure DC-2
22 Transcript PN407-412
23 Exhibit A10 at [3.1]; Transcript PN4901
24 Exhibit A10, Appendix 1 (pg.15)
25 Exhibit A10, Appendix 1 (pg.11); Transcript PN4820
26 Exhibit R15
27 Exhibit A10, Appendix 1
28 Ibid (pg.12), Transcript PN4858–4862
29 Exhibit A10, Appendix 1 (pg.11); Transcript PN4820
30 Exhibit A10, Appendix 1 (pg.13); Transcript PN4925
31 Transcript PN4885
32 Transcript PN4820 and PN4886
33 Transcript PN4887
34 Transcript PN4912 and PN4948
35 Transcript PN4890
36 Transcript PN4891
37 Transcript PN4912
38 Transcript PN4895-4896
39 Transcript PN4902
40 Exhibit A10 at [7.22] and [7.26]
41 Transcript PN4820 and PN4936
42 Ibid
43 Transcript PN4820
44 Ibid
45 Transcript PN4943
46 Transcript PN4945
47 Transcript PN4946-4947
48 Transcript PN4887
49 Transcript PN4912 and PN4948
50 Transcript PN4947
51 R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456 at 488 (affirmed in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at 66-67).
52 Fair Work Act 2009 (Cth), s.591
53 Pearse v Viva Energy [2017] FWCFB 4701 at [14]
54 Fair Work Act 2009 (Cth), s.577(a)
55 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith and others v Moore Paragon Australia Ltd, [2002] AIRC 317 at [69].
56 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
57 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
58 Edwards v Guidice (1999) 94 FCR 561 at 564; King v Freshmore (Vic) Pty Ltd, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000 Print S4213 at [24]
59 Ibid
60 Briginshaw v Briginshaw (1938) 60 CLR 336
61 Ibid at 363
62 Ibid per Dixon J at 362
63 Ibid per Rich J at 350
64 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216
65 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450
66 [2003] NSWCA 388
67 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; approved in Karakatsanis v Racing Victoria Ltd
(2013) 306 ALR 125 at [35-37]
68 NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124]
69 Transcript PN362, PN363 and PN370
70 Exhibit R33, clause 60
71 Applicant’s amended closing submissions at [14-15]
72 Ibid at [16]
73 Ibid at [127]
74 Exhibit R25
75 Respondent’s closing submissions at [6]; Exhibit R25
76 Exhibit R29
77 Ibid at [2.1]
78 Ibid at [1.1]
79 Ibid
80 Ibid
81 Transcript PN719–800
82 Transcript PN975-982
83 Transcript PN972
84 Transcript PN973
85 Transcript PN978
86 Exhibit R13 at [9]
87 Ibid at [19.1(a)]
88 Transcript PN3041; Exhibit R10, Annexure AS-2 and Annexure AS-3 at [6]; Exhibit R12, Annexure JP-1 at [3]; Exhibit R13 at [19.1(a)]; Exhibit R18, Annexure SB-3 at [12]; Exhibit R23, Annexure DC-1
89 Exhibit R8 at [9], Exhibit R9 at [6]
90 Exhibit R23, Annexure DC-1 (pg.3)
91 Exhibit R13, Annexure KM-2 (pg.1); Exhibit R14, Annexure MB-1 (pg.2)
92 Exhibit R13 at [19.1(b)]
93 Exhibit R13 at [19.1(b)] and Annexure KM-2 (pg.1)
94 Exhibit R13, Annexure KM-2 (pg.1)
95 Exhibit R10, Annexure AS-2 (pg.1); Exhibit R18 at [50]; Exhibit R23, Annexure DC-1 (pg.1); Exhibit R14, Annexure MB-1 (pg.2); Exhibit A3, Annexure LH 4 (pg.1)
96 Exhibit R10, Annexure AS-2 (pg. 1); Exhibit R18, Annexure SB-3 at [17]; Exhibit A3 at [9]
97 Exhibit R13 at [19.1(c)]; Exhibit R14, Annexure MB-1 (pg.2), Exhibit R14, MB-2 at [3]
98 Transcript PN4526-4528
99 Exhibit R10, Annexure AS-3 at [8]
100 Exhibit R10, Annexure AS-2 (pg.1)
101 Ibid; Exhibit R13 at [19.1(d)]; Exhibit R12, Annexure JP-1 at [3]
102 Exhibit R10, Annexure AS-2 (pg.2)
103 Ibid; Exhibit R12, Annexure JP-1 at [3] and Annexure JP-3 (pg.1)
104 Exhibit A3, Annexure LH 2 (pg.2); Exhibit R12, Annexure JP-3 (pg.1); Exhibit R10, Annexure AS-2 (pg.2); Exhibit R10, Annexure AS-3 at [8]
105 Exhibit R10, Annexure AS-3 at [11]; Exhibit R12, Annexure JP-1 at [3] and Annexure JP-2 (pg.1); Exhibit R13 at [19.1(d)]
106 Exhibit R12, Annexure JP-1 at [4]; Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [11]
107 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [11]; Exhibit R13, Annexure KM-3 at [3]
108 Exhibit R10, Annexure AS-3 at [11]; Exhibit R13, Annexure KM-3 at [3]
109 Applicant’s amended closing submissions at [24]
110 Transcript PN3564
111 Transcript PN4420
112 Transcript PN4421
113 Transcript PN4420
114 Transcript PN4419
115 Applicant’s amended closing submissions at [24.2]
116 Exhibit A3, Annexure LH 9 (Q18-Q19); Exhibit R18 at [34]; Exhibit R11 at [25]; Exhibit R16, Annexure MS-2 at [8]; Exhibit R23 at [25]; Applicant’s amended closing submissions at [25]
117 Exhibit R10 at [24.15]; Exhibit R11 at [9]; Exhibit R13, Annexure KM-3 at [3]; Applicant’s amended closing submissions at [25]
118 Exhibit R11 at [25]
119 Transcript PN3998
120 Transcript PN4000
121 Transcript PN3999-4001
122 Exhibit R11 at [25.1]
123 Transcript PN4050
124 Transcript PN4001
125 Transcript PN4002
126 Transcript PN6393-6394
127 Transcript PN5685
128 Transcript PN5684
129 Transcript PN5152
130 Transcript PN5257
131 Transcript PN5684
132 Exhibit R18 at [35]
133 Transcript PN655
134 Transcript PN1784
135 Applicant’s amended closing submissions at [99.1.1]
136 Transcript PN6700
137 Applicant’s amended closing submissions at [99.1.1.1]
138 Exhibit R25; Transcript PN791-800
139 Transcript PN1056-57
140 Exhibit R13 at [19.2(d)] and Annexure KM-3 at [3]
141 Exhibit R10 at [24.2]
142 Exhibit R13 at [19.2(d)]
143 Transcript PN4567-4572
144 Transcript PN3725
145 Exhibit R10 at [24.3]; Transcript PN3051-3053
146 Transcript PN3051-3052
147 Transcript PN3096
148 Transcript PN3097
149 Transcript PN3096
150 Transcript PN3044, PN3056 and PN3932-3936
151 Transcript PN3056-3057
152 Transcript PN3109
153 Transcript PN3111
154 Transcript PN3111
155 Transcript PN3125
156 Transcript PN3131
157 Exhibit R10 at [12]
158 Transcript PN3172
159 Transcript PN3170
160 Transcript PN3171
161 Transcript PN3243
162 Transcript PN3265
163 Transcript PN3191-3193
164 Transcript PN3243
165 Transcript PN3243
166 Transcript PN3196, PN3226 and PN3243
167 Transcript PN3196
168 Transcript PN3265
169 Transcript PN3229
170 Transcript PN4519
171 Transcript PN4530 and PN4532
172 Transcript PN4533
173 Transcript PN4536
174 Transcript PN4534-4535
175 Transcript PN5578
176 Transcript PN5581
177 Transcript PN5578-5580
178 Transcript PN5698-5699
179 Transcript PN4023
180 Transcript PN4024
181 Exhibit R11, Annexure JW-1 at [5]
182 Transcript PN4032-4033
183 Exhibit R11, Annexure JW-1 at [5]
184 Exhibit R11 at [31]
185 Exhibit A3 at [9]
186 Ibid at [20.2]
187 Exhibit A3, Annexure LH 9 (Q.236)
188 Ibid (Q190) and (Q327)
189 Transcript PN1032 and PN1043
190 Transcript PN1885
191 Transcript PN1888
192 Transcript PN1890–1897
193 Transcript PN2102
194 Transcript PN1738
195 Exhibit A3 at [20.9]
196 Ibid
197 Exhibit R16 at [51]
198 Exhibit R23 at [38]
199 Applicant’s amended closing submissions at [80]
200 Ibid at [85]
201 Ibid at [86]
202 Ibid at [65]
203 Ibid at [70-79]
204 Transcript PN2128
205 Transcript PN665
206 Transcript PN1040
207 Transcript PN835
208 Transcript PN911
209 Transcript PN654
210 Exhibit R10, Annexure AS-3 at [13]; Transcript PN3699-3702
211 Exhibit R13 at [19.2(c) and (e)] and Annexure KM-3 at [4]
212 Exhibit R14, Annexure MB-2 at [3]
213 Exhibit R12 at [17.3] and Annexure JP-1 at [5]
214 Exhibit R10 at [24.1]; Transcript PN3699-3702
215 Transcript PN655
216 Transcript PN1034
217 Transcript PN1034–1043
218 Transcript PN668
219 Exhibit R11 at [25]
220 Transcript PN3998
221 Transcript PN4000
222 Transcript PN3999-4001
223 Exhibit R23 at [24.3]
224 Ibid at [24.4]
225 Transcript PN6387
226 Transcript PN6210
227 Transcript PN5694
228 Exhibit R16 at [48]
229 Transcript PN5694
230 Exhibit R18 at [35]
231 Applicant’s amended closing submissions at [98.1]
232 Exhibit R11 at [31]
233 Ibid
234 Ibid at [33]
235 Ibid at [42]
236 Ibid at [33-34]
237 Ibid at [32]
238 Exhibit R10 at [23.2], Annexure AS-2 and Annexure AS-3 at [12]
239 Exhibit R10 at [23.2]
240 Exhibit R12 at [25], Annexure JP-1 at [6]
241 Transcript PN1051
242 Exhibit A3 at [20.7]
243 Ibid at [20.8]
244 Transcript PN1183
245 Respondent’s closing submissions at [112-113]
246 Applicant’s amended closing submissions at [98.9]
247 Transcript PN906, PN910, PN929 and PN1216
248 Transcript PN906
249 Transcript PN955-957 and PN1216
250 Transcript PN911
251 Applicant’s amended closing submissions at [84]
252 Transcript PN1976-1980
253 Transcript PN906, PN910 and PN1976
254 Transcript PN5477, PN5483-5484, PN5486 and PN5490
255 Transcript PN5490
256 Transcript PN5487
257 Exhibit R11 at [25]
258 Exhibit R23 at [24.12]
259 Ibid at [24.13]
260 Transcript PN5694
261 Exhibit R16 at [49]
262 Transcript PN5598
263 Exhibit R18 at [35-36]
264 Exhibit A3 at [10]; Exhibit R12, Annexure JP-1 at [5]; Exhibit R13 at [19.2(e)]; Exhibit R14, Annexure MB-2 at [3]
265 Exhibit A3, Annexure LH 9 (Q365) and (Q382)
266 Transcript PN1387
267 Transcript PN964
268 Transcript PN1388
269 Exhibit A3 at [11-12]
270 Transcript PN1466
271 Transcript PN676 and PN1394
272 Transcript PN677
273 Transcript PN1394-1399
274 Transcript PN1424-1425
275 Exhibit A3, Annexure LH 9 (Q384), (Q403) and (Q419-420)
276 Ibid (Q387)
277 Exhibit R8 at [5-7]; Exhibit R9 at [4-5]
278 Transcript PN4525
279 Exhibit R8 at [22]; Exhibit R9 at [17]; Transcript PN2747, PN2818 and PN2853
280 Transcript PN2743 and PN2851–2853
281 Exhibit R10 at [24.7]
282 Exhibit R12, Annexure JP-3
283 Exhibit R8 at [13], [14] and [18]
284 Exhibit R9 at [9], [13] and [19.5], Transcript PN2855
285 Exhibit R9 at [9], [13] and [19.5]; Exhibit R8 at [14]
286 Exhibit R8 at [18], [24.2] and [26.4]
287 Exhibit R9 at [13], [19.2], [20] and [21.4]
288 Exhibit R8 at [18], [24.4] and [27]; Exhibit R9 at [13] and [19.4]
289 Exhibit R8 at [13], [21], [24.1], and [26.1]; Exhibit R9 at [16], [19.1] and [21.1]
290 Exhibit R8 at [24.6] and [26.2]; Exhibit R9 at [19.6] and [21.2]
291 Exhibit R8 at [18], [25] and [26.3]; Exhibit R9 at [20] and [21.3]
292 Applicant’s amended closing submissions at [99.2-99.4]
293 Respondent’s closing submissions at [85]; Exhibit R10, Annexure AS-3 at [13], [14] and [18]
294 Exhibit R10 at [24.10-24.11]
295 Ibid at [24.17]
296 Applicant’s amended closing submissions at [98.10.6.1.1.1]
297 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [13]; Transcript PN3928 and PN3838-3839
298 Exhibit R10, Annexure AS-2 (pg.2)
299 Exhibit R10, Annexure AS-3 at [13]
300 Applicant’s amended closing submissions at [91.2]
301 Exhibit R10 at [24.6]
302 Exhibit R13 at [19.2(b)]
303 Ibid at [19.3(a)]
304 Exhibit R12, Annexure JP-1 at [7]; Transcript PN4343-4351
305 Exhibit R12 at [24.11] and [26] and Annexure JP-2
306 Exhibit R12 at [16.1]
307 Exhibit R14, Annexure MB-2 at [5]
308 Exhibit R11, Annexure JW-1 at [7]
309 Exhibit R11 at [15.2]
310 Exhibit A3 at [20.4]
311 Ibid
312 Transcript PN671, PN1236 and PN1253
313 Transcript PN1254
314 Applicant’s amended closing submissions at [51]
315 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [13]; Transcript PN3739, PN3838 and PN3928
316 Exhibit R12, Annexure JP-1 at [7] and Annexure JP-2 (pg.1)
317 Exhibit R12 at [16.1] and [27]
318 Exhibit R12 at [16.1] and [27], Annexure JP-1 at [7] and Annexure JP-2 (pg.1)
319 Exhibit R12 at [16.1]
320 Transcript PN4238
321 Transcript PN4232-4236
322 Exhibit A3 at [20.4]
323 Transcript PN1239
324 Transcript PN1239, PN1252 and PN1320,
325 Applicant’s amended closing submissions at [96]
326 Ibid at [97]
327 Ibid at [90-91]
328 Exhibit R10, Annexure AS-2 (pg.2)
329 Exhibit R10, Annexure AS-3 at [13]
330 Exhibit R12, Annexure JP-1 at [7] and Annexure JP-2 (pg.1)
331 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [13]
332 Exhibit R12, Annexure JP-1 at [7], Annexure JP-2 (pg.1)
333 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [14]; Transcript PN3421-3423
334 Exhibit R10 at [24.6]
335 Ibid at [24.17]
336 Exhibit R10, Annexure AS-2 (pg.2), Annexure AS-3 at [14] and [17]; Transcript PN3739 and PN3929
337 Exhibit R10 at [28]
338 Exhibit R11, Annexure JW-1 at [8]
339 Exhibit R11 at [15.2]
340 Exhibit R13, Annexure KM-3 at [4]
341 Transcript PN4592
342 Exhibit R13 at [14.1] and [19.4(a)], Annexure KM-2 (pg.2) and Annexure KM-3 at [5]; Transcript PN4399
343 Transcript PN4398
344 Exhibit R14, Annexure MB-2 at [6]
345 Exhibit R12 at [27], Annexure JP-1 at [8-10], Annexure JP-2 (pg.1-2) and Annexure JP-3 (pg.2); Transcript PN4343-4351
346 Exhibit R14 at [21], Annexure MB-2 at [6]
347 Transcript PN4718-4719
348 Exhibit A3 at [20.4]
349 Ibid
350 Ibid at [20.5]
351 Transcript PN671
352 Transcript PN1273
353 Exhibit A3 at [20.4]; Transcript PN1271-1272
354 Transcript PN1274-1276 and PN1278; Exhibit A3 at [20.11]
355 Applicant’s amended closing submissions at [96]
356 Ibid at [97]
357 Transcript PN668
358 Applicant’s amended closing submissions at [54]
359 Ibid at [50]
360 Exhibit R10, Annexure AS-2 (pg.2) and Annexure AS-3 at [17]; Exhibit R12, Annexure JP-1 at [7] and Annexure JP-2 (pg.1); Exhibit R13, Annexure KM-2 (pg.2) and Annexure KM-3 at [5].
361 Exhibit R10 at [24.10-24.11], [30] and Annexure AS-3 at [18]; Transcript PN3740-3746
362 Exhibit R10 at [30]; Transcript PN3745
363 Exhibit R12 at [24.14] and Annexure JP-3 (pg.2); Transcript PN4213 and PN4313
364 Exhibit R14 at [21] and Annexure MB-2 at [7]; Transcript PN4709
365 Exhibit A3 at [20.10]; Transcript PN1369
366 Transcript PN1360-1366
367 Transcript PN1367-1368
368 Exhibit R10 at [24.11]; Transcript PN3742-3744
369 Exhibit R10, Annexure AS-3 at [17]
370 Ibid at [18]
371 Ibid at [18], Transcript PN3065 and PN3750
372 Exhibit R10 at [24.6]
373 Ibid at [24.17]; Transcript PN3065-3067
374 Exhibit R10, Annexure AS-3 at [18]; Transcript PN3765
375 Exhibit R10 at [24.10], [24.15], [24.18], [26.1-26.2], [30], Annexure AS-2 (pg.2) and Annexure AS-3 at [18]; Transcript PN3068, PN3391, PN3740-3741, PN3750, PN3765 and PN3753
376 Exhibit R12, Annexure JP-1 at [11]
377 Exhibit R12 at [24.15], Annexure JP-1 at [11], Annexure JP-2 (pg.2) and Annexure JP-3 (pg.2)
378 Transcript PN4347-4350
379 Exhibit R12 at [24.15], Annexure JP-1 at [11], Annexure JP-2 (pg.2) and Annexure JP-3 (pg.2); Transcript PN4213 and PN4249
380 Transcript PN4578
381 Exhibit R13 at [19.4(a)], Annexure KM-3 at [6]; Transcript PN4432 and PN4576
382 Transcript PN4718
383 Transcript PN 4719
384 Exhibit A3 at [20.4]
385 Ibid at [20.4]
386 Ibid at [20.5]
387 Exhibit A3 at [20.10], Annexure LH 9 (Q.322-325); Transcript PN1369
388 Transcript PN1366-1368
389 Exhibit R23, Annexure DC-1 (pg.3)
390 Exhibit A3 at [6]
391 Ibid at [13]
392 Applicant’s amended closing submissions at [98.4.6]
393 Exhibit R13, Annexure KM-1 (pg.1)
394 Exhibit R10, Annexure AS-1 (pg.2)
395 Applicant’s amended closing submissions at [98.10.1.1]
396 Ibid at [99.12.1]
397 Transcript PN1073
398 Transcript PN1073; Exhibit A3 at [12-13]
399 Transcript PN1076
400 Exhibit A3 at [20.23]
401 Exhibit A3, Annexure LH 9 (Q24-31)
402 Transcript PN1079
403 Ibid
404 Transcript PN1439
405 Transcript PN2122; Exhibit R23, Annexure DC-4 (pg.2)
406 Exhibit R10 at [24.15], [26.2], Annexure AS-2 (pg.2-3) and Annexure AS-3 at [18]; Transcript PN3069 and PN3395
407 Transcript PN3396
408 Exhibit R10 at [26.2]; Transcript PN3058
409 Transcript PN3941-3942
410 Transcript PN3593 and PN3807
411 Transcript PN3749-3753
412 Transcript PN3765-3766
413 Exhibit R10 at [24.18], Annexure AS-2 (pg.3)
414 Exhibit R10, Annexure AS-3 at [18]
415 Ibid, Transcript PN3344 and PN3402
416 Exhibit R10, Annexure AS-2 (pg.3)
417 Exhibit R10, Annexure AS-3 at [18]
418 Transcript PN3344
419 Transcript PN3388
420 Transcript PN3388-3390
421 Exhibit R10, Annexure AS-2 at (pg.2)
422 Exhibit R10 at [24.15], Annexure AS-2 (pg.2) and Annexure AS-3 at [18]
423 Exhibit R10, Annexure AS-2 (pg.2-3)
424 Exhibit R10 at [26.2]
425 Transcript PN3144
426 Transcript PN3188
427 Transcript PN 3189
428 Transcript PN3178
429 Transcript PN3184
430 Transcript PN3178
431 Transcript PN3182
432 Transcript PN3176
433 Exhibit R11 at [23.3]
434 Exhibit R11, Annexure JW-1 at [11]
435 Exhibit R11, Annexure JW-2 (pg.2)
436 Transcript PN4079
437 Transcript PN4082
438 Exhibit R11 at [23.3]; Transcript PN4083
439 Exhibit R11 at [36-37] and Annexure JW-1 at [11]
440 Exhibit R12 at [17.5]
441 Exhibit R12, Annexure JP-2 (pg.2) and Annexure JP-3 (pg.2), Transcript PN4249 and PN4313
442 Transcript PN4249
443 Transcript PN4307 and PN4313-4314
444 Transcript PN4297-4298
445 Exhibit R12 at [17.6-17.7]; Transcript PN4242
446 Exhibit R12 at [17.5]
447 Transcript PN4315
448 Exhibit R12 at [16.4]
449 Ibid at [17.5]
450 Ibid at [16.4]
451 Transcript PN4322
452 Exhibit R12 at [16.4], Annexure JP-1 at [12] and Annexure JP-2 (pg.2)
453 Exhibit R13 at [19.4(a)] and Annexure KM-3 at [6]
454 Exhibit R13 at [14.1]
455 Transcript PN4430
456 Transcript PN4426–4432
457 Exhibit R13 at [14.1] and [19.4(d)]
458 Exhibit R14 at [22]
459 Transcript PN4715
460 Transcript PN4686-4692
461 Transcript PN4687
462 Transcript PN5151
463 Transcript PN5152
464 Exhibit R11 at [25]
465 Transcript PN3998
466 Transcript PN4000
467 Transcript PN3999-4001
468 Transcript PN5694
469 Transcript PN655
470 Exhibit A5; Exhibit A6
471 Exhibit A5 (pg.1)
472 Exhibit A3 at [20.19]
473 Transcript PN559, PN612-619 and PN626
474 Transcript PN559
475 Transcript PN559-561, PN612-619 and PN626
476 Transcript PN561
477 Transcript PN612, PN857, PN868-869 and PN2069
478 Transcript PN825 and PN1911
479 Transcript PN1912
480 Transcript PN1982-1984 and PN1998-2023
481 Transcript PN1916
482 Transcript PN835
483 Transcript PN831-839
484 Transcript PN510, PN2007-2008 and PN2058
485 Transcript PN612, PN857, PN862 and PN2010-2013
486 Transcript PN2024
487 Transcript PN868
488 Transcript PN2027
489 Transcript PN848
490 Transcript PN856-857
491 Transcript PN5787
492 Transcript PN5788
493 Transcript PN5789-5796 and PN5799
494 Transcript PN5806
495 Transcript PN5811
496 Transcript PN5817
497 Transcript PN5818-5821
498 Transcript PN5841
499 Ibid
500 Transcript PN5842
501 Applicant’s amended closing submissions at [95]
502 Ibid
503 Exhibit R26
504 Ibid, page 1 of 4
505 Ibid, page 3 of 4
506 Respondent’s closing submissions at [144(o)]; Applicant’s amended closing submissions at [40.2]
507 Applicant’s amended closing submissions at [98.6.1]
508 Transcript PN885
509 Exhibit A3 at [20.20]
510 Transcript PN923
511 Transcript PN805
512 Transcript PN559
513 Exhibit A3 at [20.21]
514 Transcript PN906
515 Transcript PN919
516 Transcript PN921
517 Transcript PN799-800
518 Transcript PN887-889
519 Transcript PN890-892
520 Transcript PN882–892
521 Transcript PN1096-1097
522 Exhibit R11 at [36]
523 Exhibit R23 at [24.8]
524 Transcript PN6399
525 Exhibit R16 at [47]
526 Transcript PN5583
527 Transcript PN5584
528 Exhibit R16 at [52]; Transcript PN5586
529 Transcript PN5518
530 Transcript PN5593
531 Exhibit R18 at [46]
532 Exhibit R18, Annexure SB-3 at [44]
533 Exhibit R18 at [43]
534 Ibid at [45]
535 Exhibit R18, Annexure SB-3 at [45]
536 Applicant’s amended closing submissions at [98.6.1.2.3]
537 Ibid at [98.6.1.2]
538 Ibid at [98.6.1.2.2]
539 Exhibit R26, page 1 of 4
540 Ibid
541 Exhibit A3 at [20.21]; Transcript PN906
542 Transcript PN906-910
543 Transcript PN1307
544 Transcript PN6609-6610
545 Exhibit R23 at [14.3]
546 Exhibit R23 at [14.7]
547 Ibid at [14.1]
548 Ibid at [14.2]
549 Transcript PN6169-6170
550 Transcript PN6073
551 Transcript PN6040
552 Exhibit R23 at [14.1]
553 Transcript PN6175
554 Ibid
555 Exhibit R23 at [14.5]
556 Transcript PN6041
557 Exhibit R23 at [14.8]
558 Ibid
559 Transcript PN6068
560 Exhibit R16, Annexure MS-2 at [8]; Transcript PN5687
561 Transcript PN6064
562 Exhibit R23 at [14.8]
563 Transcript PN5665
564 Exhibit R18 at [47]
565 Transcript PN5656
566 Exhibit R18 at [47]
567 Ibid at [47]
568 Ibid at [35.4] and [48]
569 Transcript PN1260-1261
570 Exhibit R23 at [14.5]
571 Exhibit R18 at [35.6]; Transcript PN6197
572 Transcript PN6146-6149; Exhibit R23 at [14.4]
573 Exhibit R23 at [14.4]
574 Exhibit R18 at [37]
575 Exhibit R23, Annexure DC-2
576 Applicant’s amended closing submissions at [43] and [49]; Exhibit R23, Annexure DC-2
577 Exhibit R23, Annexure DC-2 (pg.1)
578 Exhibit R10 at [24.6]
579 Ibid at [24.9] and Annexure AS-3 at [20]
580 Exhibit R10 at [29]
581 Exhibit R10, Annexure AS-2 (pg.2); Transcript PN3353
582 Transcript PN3346 and PN3353
583 Exhibit R10 at [24.14]; Transcript PN3793
584 Exhibit R12, Annexure JP-3 (pg.2)
585 Exhibit R12 at [17.6]
586 Transcript PN1312-1313 and PN1256
587 Transcript PN1077-1082
588 Transcript PN1078
589 Transcript PN1309
590 Transcript PN1472
591 Transcript PN1473
592 Transcript PN1474
593 Transcript PN1478-1480
594 Transcript PN1482
595 Transcript PN1314
596 Exhibit R23 at [21.3]
597 Ibid at [21.1]; Transcript PN6399
598 Exhibit R23 at [24.6(e)]
599 Ibid at [21.3]
600 Transcript PN6089
601 Exhibit R18, Annexure SB-3 at [45]
602 Transcript PN5056
603 Transcript PN5077
604 Transcript PN5076
605 Transcript PN5661 and PN5255
606 Transcript PN5639
607 Transcript PN5639 and PN5641
608 Exhibit R16 at [18] and [53]
609 Transcript PN5665
610 Transcript PN5688
611 Transcript PN5280
612 Transcript PN5607
613 Exhibit R16 at [53]
614 Transcript PN5078
615 Applicant’s amended closing submissions at [51]
616 Ibid at [98.6.1.3]
617 Respondent’s closing submissions at [137]
618 Transcript PN5691
619 Exhibit R16 at [52]
620 Ibid at [21]
621 Transcript PN5253
622 Respondent’s closing submissions at [2(d)] and [5]
623 Transcript PN6658-6662
624 Exhibit A3, Annexure LH 9
625 Ibid (Q87-96)
626 Ibid (Q101-103)
627 Ibid (Q106)
628 Transcript PN1111
629 Transcript PN1113-1117
630 Transcript PN1118-1119
631 Transcript PN1129-1132
632 Applicant’s amended closing submissions at [102]
633 Ibid at [103]
634 Ibid at [109] and [112]
635 Ibid at [115.1–115.4]
636 Ibid at [116] and [123-126]
637 Ibid at [112]
638 Ibid at [123]
639 Ibid at [125-128]
640 Ibid at [126-127]
641 Ibid at [127]
642 Ibid at [136]; Transcript PN6637
643 Transcript PN366
644 Applicant’s amended closing submissions at [13]
645 See for example Transcript PN2344-2354; PN2358-2363; PN2366-2386; PN6630
646 Applicant’s amended closing submissions at [7]
647 Lane v Arrowcrest (1990) 27 FCR 427 at [456], Bryne v Australian Airlines Ltd [1995] HCA 24 at [131], [136]
648 Applicant’s amended closing submissions at [8]
649 Respondent’s closing submissions at [2]
650 Ibid at [2(c)]
651 Ibid at [2] and [4]
652 Ibid at [2(d)] and [5]
653 Ibid at [186] and [192]
654 Ibid at [188]
655 Ibid at [189]
656 Ibid at [189] and [191]
657 Annetta v Ansett Australia (2000) 98 IR 233
658 He v Lewin (2004) 137 FCR 266 at [15], per Gray and Mansfield JJ, see also Miller v University of NSW [2003] FCAFC 180 per Gray J at [15]
659 (2004) 137 FCR 266 at [15]
660 Miller v University of NSW [2003) FCAFC 180 per Gray at [15]
662 Applicant’s amended closing submissions at [136]
663 Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285, 293-297; B v Australian Postal Corporation (2013) 238 IR 1, [36]; Farstad Shipping (Indian Pacific) Pty Ltd v Rust [2017] FWCFB 4738, [46]
664 Transcript PN1369
665 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41]
666 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730
667 Exhibit A1 at [4]
668 Applicant’s amended closing submissions at [8-13], [130-132] and [134]
669 Ibid at [13]
670 Ibid at [13] and [132]
671 Respondent’s closing submissions at [199]
672 Exhibit A3 at [4]
673 Transcript PN5314
674 Transcript PN5574
675 Transcript PN5131
676 Transcript PN5127-5131
677 Transcript PN5139-5141
678 Transcript PN5117 and PN5118
679 Exhibit R23 at [16]
680 Transcript PN6246-6248
681 Transcript PN6251-6252
682 Transcript PN6255
683 Exhibit R18 at [15]
684 Exhibit R18 at [16]
685 Transcript PN5905
686 Transcript PN5913
687 Transcript PN5933
688 Exhibit R7 at [26]
689 Exhibit R7 at [12] and [17]
690 Transcript PN2325
691 Transcript PN2340-2341
692 RMIT v Asher (2010) 194 IR at [14-15]
693 Applicant’s amended closing submissions at [136-137]
694 (2013) 238 IR 1
695 Ibid at [41]
696 Ibid at [42]
697 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
698 See B v Australian Postal Corporation (2013) 238 IR 1, [43]-[46]; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28
699 B v Australian Postal Corporation (2013) 238 IR 1 at [48]
700 Applicant’s amended closing submissions at [108-109]
701 Exhibit R34 at [8-9]
702 Transcript PN6883-6884
703 Australian Manufacturing Workers’ Union v Berri Pty Ltd [2017] FWCFB 3005
704 See for example clause 34.7(a)(ii) in relation to accident pay and clause 52.2(d) in relation to long service leave
705 Transcript PN2576
706 Transcript PN1036 and PN1037
707 Transcript PN992-995
708 Transcript PN1031
709 Adapted from Exhibit R23 at [14] except where otherwise referenced
Printed by authority of the Commonwealth Government Printer
Transcript PN1245; Exhibit R23 at [14.4]
711 Exhibit R18, Annexure SB-3
712 Exhibit R4, Transcript PN234
713 Exhibit R18 at [33]
714 Transcript PN226
715 Adapted from the witness evidence of Murray Kennedy
716 Exhibit R1; Transcript PN 279
717 Transcript PN166 and PN228
718 Transcript PN167
719 Transcript PN170
720 Transcript PN168
721 Transcript PN216
722 Transcript PN201
723 Transcript PN205
724 Transcript PN6087