Industrial Relations Commission New South Wales

• Medium Neutral Citation: Dr A v Health District (No 2) [2014] NSWIRComm 50
• Hearing dates: 30 May 2014; 23 June 2014, 8-11 and 14 July 2014, 27 August 2014
• Decision date: 26 September 2014
• Jurisdiction: Industrial Relations Commission
• Before: Boland AJ

Decision

The Commission makes the following orders:

(1) The Health District shall not dismiss Dr A from his employment in accordance with its present threat to do so.

(2) Within 14 days of the date of this decision the applicant shall file and serve written submissions on costs. The respondent has a further 14 days in which to reply. Unless a party seeks to be heard orally, the question of costs will be determined on the papers.

• Catchwords: UNFAIR DISMISSAL - Application for an order under s 89(7) of the Industrial Relations Act 1996 that the employer that the Health District not dismiss the applicant from his employment in accordance with its present threat to do so - Alleged that applicant, a medical practitioner, on two occasions forcefully applied a pillow to a patient's face placing the patient at risk of serious harm - Extensive evidence, including eyewitness evidence, reviewed - Credit of applicant a significant issue - Applicant's evidence unreliable in a number of respects - Balance of probabilities - Briginshaw standard applied - Whether respondent employer entitled to rely on after-acquired knowledge - Whether a witness for the applicant to be regarded as an expert - Respondent employer carried onus of proving misconduct - Onus not discharged - Order made under s 89(7)
• Legislation Cited: Evidence Act 1995; Health Services Act 1997; Health Practitioner Regulation National Law (NSW); Industrial Relations Act 1996; Workplace Relations Act 1996 (Cth)
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Browne v Dunn (1893) 6 R 67; Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410; C A Henschke & Co and Anor v Rosemount Estates Pty Ltd [1999] FCA 1561; (1999) 47 IPR 63; Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 103 IR 160; (2000) 75 ALJR 312; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Dr A and Health District [2014] NSWIRComm 28 (Dr A (No 1)).; Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Franklins Ltd v Webb (1997) 72 IR 257; Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; (1990) 99 ALR 45; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Michael King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019.; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170; New South Wales Bar Association v Livesey [1982] 2 NSWLR 231; Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70; Perfection Dairies Pty Ltd v Finn [2006] NSWIRComm 137; (2006) 151 IR 197; Vujica v TNT Australia Pty Ltd [2014] FWC 4790; Watson v Foxman (1995) 49 NSWLR 315
• Texts Cited: Australian Law Reform Commission "Examination and Cross Examination of Witnesses", ALRC Report 102; Macmillan Publishing Group Australia, 2014; Macquarie Dictionary On line edition; M Sasada and S Smith, "Drugs in Anaesthesia and Intensive Care", 2003, 3rd ed, Oxford University Press
• Category: Principal judgment
• Parties: Dr A (Applicant); Health District (Respondent)
• Representation: A Moses SC with Y Shariff of counsel (Applicant); K Nomchong SC with A Britt of counsel (Respondent); TressCox Lawyers (Applicant); Bartier Perry Solicitors (Respondent)
• File Number(s): IRC 715 of 2013

Judgment

1 This matter concerns an application by Dr A for an order pursuant to s 89(7) of the Industrial Relations Act 1996 ("the IR Act") that the Health District not dismiss him from his employment in accordance with its present threat to do so. Section 89(7), which is to be found in the unfair dismissal provisions of the Act (Pt 6 of Ch 2), provides:

89 Orders for reinstatement, re-employment, remuneration, compensation

(7) Threat of dismissal

In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.

2 Pseudonyms are used in these reasons for decision as a consequence of the Full Bench decision in Dr A and Health District [2014] NSWIRComm 28 (Dr A (No 1)). Additionally, I have ascribed pseudonyms to other personnel where I have considered it appropriate to protect the anonymity of the applicant.

3 As it will be seen, the central issue in the proceedings is Dr A's use of a pillow on a patient. Dr A maintained that he merely used the pillow on one occasion as a 'spit shield' when a patient ("the Patient" or "Patient 1") in the Emergency Department ("ED") of the Hospital (I will refrain from identifying the name of the Hospital where the incident occurred and simply refer to it as "the Hospital") started spitting and that the pillow was not pressed against the Patient's face. Evidence from other clinicians present was that the pillow was used inappropriately on two occasions and pressed firmly onto the Patient's face for a period of time ranging from estimates of four seconds up to two minutes.

4 Arising out of the incident, two allegations were made against Dr A by the respondent:

Allegation One: That on 26 May 2013 in the [Hospital] Emergency Department, Dr [A] forcefully applied a pillow to the face of a patient in response to the patient spitting at Dr [A].

Allegation Two: That on 26 May 2013 in the [Hospital] Emergency Department, Dr [A] forcefully applied a pillow to the face of a patient (over the Hudson mask) of the patient.

5 On 19 June 2013, the Chief Executive of the respondent made preliminary findings that Allegation One was sustained, but Allegation Two was not. It was noted that Dr A denied the first allegation entirely. Dr A was given seven days to provide submissions as to why the preliminary findings should not be confirmed.

6 On 3 July 2013, Dr A (through his solicitors) responded to the preliminary findings. The response strenuously denied Allegation One and provided detailed submissions as to why the evidence did not support the allegation.

7 On 14 August 2013, the Chief Executive of the respondent addressed Dr A's submissions and confirmed the preliminary findings, namely, that Allegation One was sustained. The Chief Executive further indicated that a recommendation had been made that Dr A's employment be terminated and that he was minded to accept that recommendation. Dr A was given a period of seven days to provide reasons why this course should not be taken.

8 On 27 August 2013, Dr A commenced proceedings pursuant to s 84 of the IR Act. It was asserted in the application for relief that the Chief Executive's letter of 14 August 2013 was a threat to terminate Dr A's employment. It was further asserted that the threatened termination would be "harsh, unreasonable and unjust." At the same time, Dr A filed a notice of motion seeking an injunction restraining the threatened termination of his employment.

9 On 28 August 2013, the proceedings were listed for an interlocutory hearing before Haylen J. At the hearing on 28 August 2013, the respondent indicated that it was prepared to give an undertaking that it would not take any steps to terminate Dr A's employment unless it provided seven days' notice of such an intention.

10 On 10 September 2013, a conciliation conference was held before Haylen J, but it was unsuccessful in resolving the matter. On 6 November 2013, the Chief Executive made a decision to terminate Dr A's employment, but execution of that decision was put on hold pending the determination of the unfair dismissal proceedings. In deciding to terminate the applicant's employment the Chief Executive took into account the following matters:

1. The serious nature of your conduct as described in Allegation 1;

2. The findings in respect to Allegation 1;

3. Your failure to acknowledge your conduct;

4. Your lack of remorse for your conduct;

5. The fact that you have attempted to downplay the gravity of your conduct by asserting that the patient was not harmed because the 94 year old patient suffered no long term consequences from the incident;

6. Your failure to acknowledge the real possibility that the patient may have been psychologically affected by having a pillow held over his face, even though the patient apparently has no memory of the event now;

7. Your ongoing justification of your behaviour as an appropriate response to being spat upon by a 94 year old patient suffering delirium;

8. Your failure to recognise the impact your conduct on your colleagues and your failure to apologise to them for your conduct;

9. The risk of repeated similar behaviour, given that you have asserted that the use of the pillow was an automatic response to a patient spitting, in circumstances where spitting by patients is a relatively frequent event in ED.

11 On 12 December 2013, the unfair dismissal proceedings were listed for final hearing commencing in April 2014. For reasons referred to in Dr A (No 1) relating to the pseudonym orders, the hearing was delayed. The substantive hearing commenced on 30 May 2014 and concluded on 27 August 2014.

12 In the meantime, Dr A has been suspended from his employment without pay, but the respondent has taken no objection to the applicant engaging in alternative employment, which he has.

Dr A

13 Dr A is a registered medical practitioner. He graduated from the University of Newcastle in 1990. After completing his internship, residency and a year as a Senior Resident Medical Officer, then six months as Emergency Medicine Registrar, he worked in rural general practice from 1994 to 2004.

14 In 2005, Dr A enrolled in the Australasian College of Emergency Medicine (ACEM) Training Program and was employed as a Registrar in Emergency Medicine at St Vincent's Hospital. From 2006 to 2009 he was employed at the Hospital as a Registrar in Emergency Medicine while being an Advanced Trainee in the ACEM Training Program. From 2010 to 2012 Dr A worked as a Registrar in Emergency Medicine at Ryde Hospital and Royal North Shore Hospital. He returned to the Hospital in 2013 as a Senior Registrar in Emergency Medicine, where he remained until the suspension of his employment on 28 May 2013.

15 From 1996 to 2009 the applicant served in the Royal Australian Air Force Reserves as a Squadron Leader - Medical Officer, which included four overseas deployments.

16 Since 1997 he has been an examiner for the Royal Australasian College of General Practitioners. Dr A is a Primary Care Clinical Teacher in General Practice at the University of New South Wales. He has also held appointments as a Clinical Conjoint Lecturer in Primary Care at Newcastle University from 1998 - 2004, and the University of New South Wales from 2011 to date.

17 Trainees have 12 years from commencement of training to complete the ACEM Training Program. The applicant was scheduled to sit the ACEM Fellowship Examination in August 2013. This examination is one for which he had been studying for two years. As a consequence of the suspension of his employment Dr A was unable to complete the training term January to June 2013. As a consequence his assessment for the term was "unsatisfactory".

18 In order to be eligible to sit the Fellowship examination a trainee must be assessed as performing at or above the 'expected level' in the most recent 12 months of In-Training Assessments (ITAs) received prior to the closing date for sitting the examination.

19 Dr A has been advised by the ACEM that because of the "unsatisfactory" assessment for the term January to June 2013, he was ineligible to sit the Fellowship Examination in 2014 as he did not meet the requirement of 12 months satisfactory ITAs prior to the closing date.

Events leading up to the pillow incident

20 The incident that led to the applicant's suspension involved the applicant's handling of a 94-year-old male patient of the Hospital. The Patient was brought in by ambulance to the ED of the Hospital at around 1746 hours on 24 May 2013. According to the history given by the Patient to a medical registrar who first examined him, he had fallen while standing in a bank the previous day after his legs had given way. He then attended his general practitioner, who had called an ambulance, as the Patient was dizzy, weak and confused. Upon admission to the ED, it was determined that the Patient needed to undergo a CT scan of his brain to exclude a cerebrovascular event and that further investigations including a chest X-Ray, ECG and a full blood count should be performed. A CT scan of the Patient's brain was taken at around 2048 hours on 24 May 2013.

21 The Patient was subsequently reviewed by a different medical registrar who noted that the Patient was mildly dehydrated and considered it unlikely that he had suffered a transient ischaemic attack. A plan was formulated for the Patient to be discharged with ongoing follow up in the Hospital's Falls Clinic. It was decided that the Patient would remain in the Emergency Medical Unit ("EMU") overnight to undergo assessment by the Aged Care Services Emergency Team ("ASET") on the following morning.

22 During the next morning (25 May 2013), ASET reviewed the Patient. It was considered that he was at pre-morbid mobility, so it was safe to discharge with follow up at the Hospital's Falls Clinic. The Patient's wife was telephoned at 1319 hours, and she agreed to come and collect him. In anticipation of his discharge, the Patient's IV cannula was removed. However, for reasons that remain unexplained, the Patient's discharge did not proceed.

23 The Patient was next reviewed by another medical registrar at 1652 hours on 25 May 2013 and was noted to have chronic renal failure, and was also dehydrated, but had not been on IV fluids. At this time, the medical registrar queried whether the Patient had also suffered from delirium. After discussions, the plan of management that was put in place was for the Patient to be given IV fluids and for his renal impairment to be assessed by the next medical registrar.

24 The Patient was referred to Dr C around 2000 to 2030 hours. Dr C may be regarded as the respondent's principal witness. Dr C is a registered medical practitioner, graduating from the University of Sydney in 2009 with Bachelor of Medicine and Bachelor of Surgery degrees. Dr C is a member of the Royal Australasian College of Physicians and Australian Medical Association. Dr C undertook her internship at Liverpool Hospital in 2010 and was a Resident Medical Officer at Liverpool in 2011. In 2012-2013, Dr C was a Basic Physician Trainee and worked at Wollongong Hospital, Port Macquarie Base Hospital and the Hospital. Dr C is presently an Advanced Trainee, Neurology. On the evening of 25 May 2013 Dr C was working as the admitting medical registrar in the ED at the Hospital.

25 Dr C briefly read through the Patient's medical record, viewed his blood test and imaging results and then approached the Patient at approximately 2100 hours. He was located in the EMU section of the ED in a bed opposite the stairs on what Dr C referred to as "the long side of the nurses' station."

26 Dr C said that when she arrived at the bedside the Patient was settled and sleeping peacefully. This was around 2130 hours. The bed rails on his bed were up. Dr C attempted to wake the Patient. Initially, she said, the Patient was difficult to rouse, but once awoken he was agitated and uncooperative.

27 Dr C said that as the Patient became more awake he attempted to climb out of bed. She attempted to calm him down by speaking to him in a gentle tone and placing her hand on his shoulder, but he did not settle and attempted to grasp her arm in an aggressive fashion.

28 Dr C attempted to examine the Patient but he was restive, uncooperative, writhing around in bed, trying to grab Dr C's limbs and yelling "go away". He then attempted to climb out of bed again. Dr C said she managed to settle the Patient back in bed and then he subsequently fell back asleep.

29 Dr C approached the nursing staff to inquire whether the Patient had been confused or combative. The nurses indicated this had not been the case. Dr C said to the nurses:

He's really climbing the walls now, he's very agitated and he was aggressive towards me. Has anything happened to him since he was last seen in bed?

30 Dr C was advised that the Patient had been found on the floor crumpled at the end of his bed. It was assumed he had climbed over the foot of the bed and then fallen over. No one had witnessed the fall. Dr C asked whether any doctor had reviewed the patient after his fall. One of the nurses responded:

One of the ED Doctors has seen him, and one of the senior doctors came by. They said that there was no sign of head injury so the patient didn't need anything special.

31 The "ED Doctor" who had seen the Patient was Dr B. Dr B was a medical practitioner who had obtained her medical degree from Queen's University Belfast in July 2010. Following graduation, Dr B worked in Northern Ireland as a Foundation Medical Officer from August 2010 to July 2012. In January 2013, she commenced employment as a Senior Resident Medical Officer in Emergency Medicine at the Hospital.

32 Dr B assessed the Patient at 1950 hours on 25 May 2013. She noted that he had fallen onto his left side and elbow, but that he had not hit his head, nor had he suffered any loss of consciousness. On examination, his sensation to touch and his reflexes were intact and his pupils were equal and reactive to light. After reviewing the Patient, Dr B discussed her findings with Dr A. According to Dr A, Dr B said to him words to the following effect:

Patient 1 has climbed out of bed because he was agitated. I do not think that Patient 1 has sustained a head injury and he does not require a CT scan.

33 Dr C's initial diagnoses of the Patient included urinary retention with delirium/agitation and renal failure secondary to obstruction; delirium of some days' duration with nocturnal exacerbation and unknown underlying pathology; and acute behavioural change secondary to acute intracranial pathology resulting from an unwitnessed fall. She believed that the Patient had become agitated after his fall, which was indicative of him having sustained a head injury, rather than his agitation having been the reason for him attempting to get out of bed. Dr C's plan of management was for the Patient to undergo a bladder scan, insertion of a urinary catheter (IDC) and to be admitted for further investigation of delirium.

34 Additionally, notwithstanding Dr B's opinion that no brain scan was needed, an opinion about which Dr C was made aware by a nurse, Dr C considered a scan was necessary. She ordered a "CT Brain" and called the porters to take him to CT.

35 A conversation took place between Dr A and Dr C about the need for a CT brain scan. The facts of this conversation are contested. It was Dr A's evidence that:

At around this time [2130 hours], Dr C and I had a discussion regarding her plan of management for Patient 1. My recollection is that this exchange was calm and congenial and was to the following meaning and effect:

Me: I do not think the patient requires a CT brain scan. I have spoken to Dr B and based on that, it appears unlikely that the patient has sustained a head injury as a result of falling out of bed. It is more likely than not that his delirium and agitation was the cause of his fall, not a result of the fall.

Dr C: I don't agree with you. In my opinion a CT brain scan is necessary for the patient to be admitted to the geriatric ward.

Me: If the CT brain scan is for admission to the geriatric ward, then go ahead and arrange it. It is your call.'

Following this conversation, Dr C cancelled Patient 1's transport to radiology....

36 It was Dr C's evidence that:

Around this time Dr [A] entered the EMU area. He came up to me and said;

"Oh, you're seeing [the Patient], I heard that he fell out of bed"

I replied;

"Yes and he's gone from being pleasant and chatty to being agitated and delirious so I've ordered him a CT brain and I've called the porter and they're ready for him now."

I can't remember the exact words of our conversation but the discussion with Dr [A]continued along the following lines:

Dr [A] said;

"When I saw him there were no signs of head injury and the patient was fine. You medical registrars are always ordering a CT brain. It is not indicated and a waste of emergency department resources. Have you even bothered to take a history to see if there may be another cause of his delirium?"

I said;

"I cannot take a history from the patient as he is combative, whilst it is true that I have not attempted to contact family members for a collaborative history, I am concerned that this patient has had an acute behavioural change within a short period after an unwitnessed fall in hospital and I want to exclude an acute intracranial haemorrhage. The patient has previously had a subdural after a fall. It is something I would like to exclude.

Dr [A] then said;

"Do your job properly before you jump in and order tests, I am going to say no to the CT brain. In any case he would need sedation to go into the scanner and I am not going to do that until you complete a proper assessment".

I said;

"I believe the patient can to be scanned as he was peacefully sleeping until vigorously woken".

I then called up CT. They were ready to take the patient to CT but I asked them to put the order on hold in light of the instruction from Dr [A] and not to call the patient as the emergency department did not wish to scan the patient at this stage.

37 After the discussion about the CT brain scan, Dr C contacted the Patient's wife to obtain further history from her over the phone. As a result of her discussion with the Patient's wife and the Patient's current acute kidney injury, Dr C concluded that the Patient was likely in urinary retention and that this may be contributing to his delirium.

38 Dr C again approached the Patient, who again was "sleeping soundly and peacefully", and attempted to examine his abdomen for signs of urinary retention. The Patient woke up while Dr C was doing this and was "very agitated". He refused an examination and started "throwing punches" at Dr C, hitting her "hard on my right arm". Dr C left the Patient and he fell back asleep.

39 Dr C then approached one of the nurses (RN2) and asked her to do a bladder scan on the Patient. RN2 said:

I tried to record his obs earlier and he had tried to punch me. I haven't told anyone here but I'm pregnant and he almost hit me in the belly, I don't want to go over there again.

40 Dr C suggested to RN2 that they could go over and try to do the "obs" while the patient was asleep and if he woke up both could try and settle the patient calmly together. Dr C said to RN2:

I will hold onto the patient if he tries to punch you or is aggressive or you are concerned about your safely (sic), we call it off.

41 According to Dr C, RN2 agreed and went to fetch the bladder scanner. RN2 and Dr C approached the Patient, but he "quickly became violent so we left without completing the investigation." Dr C said she realised that they would not be able to do anything with the Patient in the state he was in without sedation.

42 Dr C called Dr S, the geriatrician on call, to discuss the need for sedation for insertion of an "indwelling catheter" and to take the Patient to CT. According to Dr C, Dr S accepted care of the Patient and agreed with Dr C's plan to insert the catheter under sedation. Dr C said that Dr S also thought the Patient would require a "CT brain". Dr S said to Dr C:

Get assistance from the ED for assistance to sedate the patient.

43 Dr C returned to look for Dr A to ask for his assistance in sedating the Patient. Dr C said she found Dr A in the subacute area of the ED known as "cubes". Dr A agreed to assist Dr C in sedating the Patient. Dr A denied Dr C coming to speak with him in 'cubes'. He said Dr C approached him at approximately 2300 hours in "Fast Track."

Difference of opinion over use of Haloperidol

44 Dr A gave the following account of his conversation at this point with Dr C:

Dr C: 'The patient is agitated, uncooperative and violent. He needs to have a bladder scan to see if he is retaining urine but the bladder scanner is broken. I will have to sedate him. Which would you use? I was thinking Midazolam.

Me: 'I would not use Midazolam because of the associated risk of respiratory compromise in EMU. Haloperidol would be more appropriate for this patient, no monitoring required'.

Dr C: 'Really?'

Me: 'Midazolam can only be safely administered to such a patient [given his age] in Resus with full monitoring; there are currently no beds available in Resus'.

Dr C: 'the usual ED bladder scanner is broken'.

Me: 'I am happy to help. I will come and use the FAST ultrasound scanner'.

45 Dr A said it was 2300 hours and the main lights were turned off, but there was sufficient background light to see what was happening with the Patient.

46 Dr C's recollection of the conversation was at odds with Dr A's. Dr C said that she and Dr A walked back to the EMU and to the Patient's bedside. The Patient was sleeping peacefully again. Dr C said Dr A could not find the Patient's medication chart in the notes at the end of the bed so that he could prescribe the sedation. Dr C said this seemed to make him frustrated. He said words to the effect:

How am I meant to write up sedation without a medication chart?

47 Dr C said she went to look for the chart at the nurses' station and in the pigeonhole for the Patient's notes. She said she could see Dr A was "starting to pace now and appeared impatient". Dr C grabbed a fresh medication chart from the nurses' station and brought it over to him. Dr C quickly wrote in the Patient's details.

48 Dr A denied that he looked for the medication chart or said the words ascribed to him. He also denied he was "pacing or impatient".

49 Dr C said Dr A then turned to her and the following exchange occurred:

Dr A said:

"Write up 5mg intramuscular haloperidol",

I said:

"I would prefer he be taken to the resus area and sedated with a short acting benzodiazepine, like midazolam".

I said:

"I don't think that's the right drug for this patient, he's an elderly man and I think he is likely to have a prolonged effect from haloperidol and it may exacerbate his delirium. I also noticed that he had a pill rolling tremor in his right hand and he may have a movement disorder that could be exacerbated by antipsychotics. Also this drug is not primarily a sedative and may fail to sedate the patient adequately for the procedure"

Dr A then said:

"You are wrong, and haloperidol has a maximum duration of effect of 5 hours and because it's night time, the patient will sleep it off and be fine in the morning. Write up the haloperidol".

I said:

"I've seen the drug last for much longer in elderly patients and I am not comfortable to use the drug as sedation".

I asked again:

"Can't we give could give some midazolam with the appropriate observations".

Dr A said:

"He's a dry old man and midazolam could cause immediate threat to his airway and, I'm not prepared to give him Midazolam".

He instructed me to chart the medication.

50 Dr C said she had never before charted a medication that she thought should not be given, but she did this time for several reasons:

Firstly, I had lost my confidence as a result of my work being criticized repeatedly and rudely by Dr [A]. I also felt intimidated by him and his demeanour, also I believed him to be an emergency consultant as everybody had referred to him to that point as "the senior ED doctor"; and he had introduced himself as being "in charge" of subacute rather than as "the registrar in charge" which is how registrars usually introduce themselves.

51 It was Dr A's evidence that he did not direct Dr C to write up the medication chart for the drug Haloperidol at this time. It is his evidence that the medication chart was not written up until a later point in time. Dr A also stated:

• he did recommend Dr C administer 5mg of intramuscular Haloperidol because he considered it was the appropriate medication in the circumstances;

• he agreed Dr C said that she did not think Haloperidol the right drug for the Patient;

• Dr C did not say that Haloperidol would exacerbate the Patient's delirium;

• Dr C did not tell him that she had noticed that the Patient had a pill rolling tremor or that he may have had a movement disorder that could be exacerbated by narcotics;

• he did not say that Haloperidol had a maximum duration of 2 hours. He did say that the maximum effect was 2 - 3 hours and that because it was night time the Patient would sleep it off.

• he denied that he told Dr C to 'write up the Haloperidol' or other words to that effect.

• he agreed Dr C said that she had seen Haloperidol last for 'much longer in elderly patients' and that she was not comfortable using that drug;

• Dr C and he did have a conversation regarding Midazolam in the terms set out in his affidavit; and

• he denied criticising Dr C repeatedly and rudely.

Bladder scan

52 At this point the Patient was still asleep and peaceful. Dr C said the nurses went to draw up the Haloperidol and returned to the Patient's bedside. Dr A said he thought that the bladder "FAST ultrasound scan" could be done quickly and with little distress to the Patient. However, given the bladder scanner was broken, Dr A decided to proceed with a bladder ultrasound (also a short 10 second procedure), which he said was an equally effective method for diagnosing whether or not a patient was retaining urine.

53 Dr A said that he and Dr C approached the Patient to perform the ultrasound, and "gently rolled him onto his back while explaining what we were doing." The Patient began to swear at Dr A and abuse him. Dr A said the Patient's behaviour "very quickly turned violent and he punched me twice on the left arm."

54 Dr A said that due to the Patient's "increasingly violent behaviour", a number of other EMU staff came to assist. Those present included Dr A, Dr B, Dr C and two nurses who shall be referred to as RN1 and RN2. RN1 was a registered nurse of approximately thirty years' experience. At the relevant time she was working at the Hospital as a casual nurse in the ED. RN2 has been a Registered Nurse Level 1 since December 1993. She has experience in Critical Care Nursing and 15 years Emergency Nursing. RN2 had been working in the ED of the Hospital since 2005.

55 Dr A said he was conscious that the Patient's violent behaviour posed a risk to his safety and the staff present. Dr A said the staff present attempted to restrain the Patient at Dr A's request. According to Dr C, at this point: RN2 obtained and prepared the Haloperidol; the Patient was rolled on his left hand side; RN2 administered the Haloperidol into the Patient's right buttock; the Patient was then rolled on to his back; the Patient was being held down; and his gown was lifted up to expose his skin for the purpose of the scan. Dr C also stated Haloperidol takes about 15-20 minutes to effectively sedate a patient. She said Dr A did not wait for the Haloperidol to take effect before commencing the bladder scan.

56 Dr A said nothing about the timing of the injection of Haloperidol in his affidavit but in his oral evidence claimed that the injection occurred at a later time. Other evidence indicated that the Haloperidol was injected earlier, consistent with Dr C's evidence. The respondent submitted that this inconsistency impacted significantly on Dr A's credit. I will deal with this issue later.

Location of equipment and clinicians

57 At this point it is appropriate to state the location of the personnel involved and the location of equipment. There was a disagreement about which bed the Patient was in: Bed 8 or Bed 9. I am of the opinion the Patient was in Bed 8, a standard hospital bed. The bed rails were up. Face shields, re-breather masks and other Personal Protective Equipment (PPE) were stored on a crash cart located within 10 metres of EMU Bed 8 and in RESUS located about 30-40 metres from EMU Bed 8.

58 The evidence establishes that Dr A was standing at the left hand side of the patient at the level of the Patient's shoulders/ neck. Dr C was standing opposite Dr A, at the top of the bed, at the level of the patient's shoulder/neck/head. She was holding the patient's right arm. Dr B was standing next to Dr A on the right hand side of the bed, at a point between the Patient's waist and the lower end of the bed. It is not entirely clear whether Dr B was holding the Patient's left arm or a leg; it may have been both at different times. RN1 was on the lower left hand side of the bed, concentrating on the patient's left leg. RN2 was moving from her position on the left hand side of the bed where she had administered the Haloperidol, and then stood at the bottom of the bed. She was holding the kidney dish in which the used syringe had been placed.

59 The actual pillow used in the incident was not in evidence and a substitute was tendered. One can accept, however, the actual pillow was standard hospital issue. It had a soft plastic outer cover that was non-porous and stuffed with polyester fibre. The pillow was encased in a cotton pillowslip, measuring about 65 cm by 45 cm.

The pillow incident

Dr A's evidence

60 Dr A said the other team members attempted to restrain the Patient's limbs, but were unable to do so effectively and so the Patient continued to flail around dangerously. Dr A said he was conscious of the Patient's safety and attempted to show the staff present how to hold the patient in such a way as to apply the restraints effectively and safely. Despite Dr A's instructions he said the attempted restraints were ineffective and the Patient punched him twice on his left arm and spat a large amount of saliva into his face, which entered his mouth, eyes and right ear. Dr A stated:

At that point I let go of Patient 1's arm to apply first aid to myself. I walked away with urgency so that I could wash my mouth and face and return to Patient 1 as soon as possible. I walked 5 metres across the room to a sink to wash. I could barely see due to the saliva in my eyes.

I returned to the patient within approximately 30 seconds.

When I returned Patient 1 had a Hudson mask on his face. It is usual practice to apply a non re-breather mask to patients when they are spitting, but I assume that in my absence someone had placed a Hudson mask on the patient as a substitute. The Hudson mask is not an effective barrier because it is smaller than the non re-breather mask and was not held tightly on Patient 1's face. The Hudson mask was too small and was still folded (as it is when taken out of the packet).

As the Hudson mask was not an effective barrier in this case and had been applied loosely, Patient 1 was able to remove it and continued to spit at me and the other staff. Also, his violent head shaking made retaining the mask on his face impossible.

It is my usual practice to utilise a non re-breather mask or a face mask or paper towel as a 'spit barrier'. Because the patient was in the EMU non re-breather masks were not available, and there was no other equipment available for me to use as a barrier at all.

Due to the risk to my safety and that of the other staff, in the spur of the moment, I picked up a pillow that was next to Patient 1 and held it up approximately 10cm from Patient 1's face as a shield to block the spit stream which continued. The total time that I held the pillow as a shield was no more than 5 - 10 seconds. It was a last resort improvisation designed to be in the best interests of the patient and staff in a difficult situation.

I never applied the pillow to Patient 1's face and would never do so. I have specialist-level airway skills and applying a pillow to Patient 1's face in the circumstances would have put the patient at risk of aspiration and asphyxia, especially in view of his delirium and supine position. The pillow did not come into contact with Patient 1's head or face except possibly at time when Patient 1 was moving his head in a violent manner. At no time did I notice Patient 1 become frightened as a result of the pillow.

I was conscious that I still needed to perform the ultrasound in order to identify whether Patient 1 was retaining urine and if this was the cause of the patient's delirium and related symptoms.

Consequently, I spoke to Dr C and said:

'This will not obstruct his ventilation. Would you hold the pillow like this, away from his face so that I can attempt to perform the ultrasound'

When I passed Dr C the pillow, she held it by her side and it was clear that it was not safe and effective to proceed with the ultrasound in the circumstances.

At this point I asked the other staff to take over while I spoke to the Nurse Co-ordinator... in the main section of the ED:

Me: 'Patient 1 urgently requires a bed in Resus. Neither I nor the other staff are unable to manage him in EMU.'

Coordinator: 'Bed 9 will be ready in ten minutes.'

Me: 'We need the bed urgently, now'.

Coordinator: 'You can move the patient to Resus bed 2 now'.

At no point during the incident did any staff member voice concerns or attempt to remove the pillow. Additionally, in my view, their angle of view would not have permitted them to see how close the pillow came to Patient 1's mouth. Only I was able to see this. That is why the pillow was an effective spit shield. I used my right hand briefly on his left shoulder to stop him getting up.

61 It may be seen from this evidence that Dr A maintained he only used the pillow on one occasion and that was after he returned from washing away the spit (this relates to Allegation Two). When Dr A returned, it appeared to him that a Hudson mask had been applied to the Patient's face, but it had not been correctly applied and had dislodged. According to Dr A, as the Hudson mask was not an effective barrier, the Patient was able to continue to spit at Dr A and the other staff. Further, he was violently shaking his head making the retention of the mask on his face impossible.

62 As there was no other PPE immediately available at the bedside, given the risk to his personal safety and that of other staff in attendance, Dr A said on the spur of the moment he picked up the pillow that was next to the Patient and held it up approximately 10 cm from the Patient's face as a shield to block the continuing spit stream. According to Dr A, the total time that he held the pillow as a shield was no more than 5-10 seconds.

63 Dr A acknowledged the possibility that the Patient's face may have come into contact with the pillow as the Patient was moving his head around in a violent manner. Dr A said that at no stage did he notice the Patient become frightened as a result of the use of the pillow.

64 Dr A asked that Dr C hold the pillow in a way so as not to obstruct the ventilation of the Patient. According to Dr A, Dr C took the pillow, but then did not proceed to use it as a barrier as suggested by Dr A. At this point, Dr A asked the other staff to take over while he spoke to the Nurse Coordinator about arranging an urgent bed in the RESUS area.

65 Dr A said that at no time during the pillow incident did any of the other staff members present voice any concerns, or attempt to remove the pillow, or stop Dr A. Dr A acknowledged that he used his right hand during the incident briefly on the Patient's left shoulder to stop him from getting up whilst he was holding the pillow as the spit shield.

Dr C's evidence

66 Dr C offered quite a different version of events in her affidavit:

The patient seemed very angry at being given the needle and began throwing punches and then spat in Dr [A's] face. Dr A was visibly angry at this. Dr A's whole face changed, I could tell from his expression that he was angry at what had just occurred. Dr A then reached behind the patient's head and grabbed the patient's pillow and held it down hard on the patient's face. I was completely shocked. At that point I was at a complete loss at what to do.

Dr [A] held the pillow down for some time. He used one hand over the centre of the pillow and his right hand was on the edge of the pillow. Dr [A] was applying pressure through the pillow. I can't say for sure how long Dr [A] held the pillow down but it seemed like a long time. I would say definitely 60 seconds and after that the pillow remained in contact with the patient face but the pressure wasn't as bad.

I remember Dr [A] was standing at the patient's left shoulder. I was directly opposite him at the patient's right shoulder. The two nurses were each standing by one of the patient's legs. The RMO was standing back a bit from the nurse standing at the patient's left lower limb. Dr [A] and I were equally close to the patient.

While the pillow was being held on the patient's face the patient struggled; not to try and remove the pillow but just generally flailing his limbs.

I can't remember if the patient was on a monitor. It did not appear that the patient was being impaired as a result of this. Nonetheless it was just quite a horrible and disturbing thing to see.

Even though Dr [A] relaxed the pressure on the pillow it was still on the patient's face, this would have been about a further 30 seconds. The patient then became quiet. Dr [A] then released his hold on the pillow although it was resting there and he said,

"He is not settling"

Dr [A] then said:

"I'm tiring of this we need to restrain him or we will never be able to place this catheter, I want four limb restraints please".

Dr [A] did not give the haloperidol time to work, it could not have started to act in this time.

One of the nurses went to find the restraints and at some point Dr [A] appeared to become quite frustrated and said:

"I can't deal with this"

and he stormed off.

We removed the pillow from the patients face. One of the nurses... applied an oxygen mask to the patient's face. This was not attached to any oxygen or tubing. I seem to remember there was an obs machine nearby, but honestly I was not really dealing with the situation very well and I don't remember whether it was applied to the patient.

The patient didn't appear cyanosed and wasn't gasping for air but he was still quite agitated. A mask was applied without anything attached to it as a mechanism, really to prevent the patient spitting at anyone else.

A short time later Dr [A] came back and the nurse returned with the four limb restraints. Dr [A] stood next to the patient, looked down at him, then got the pillow and put it over his head again with some pressure. This was despite the fact that he was wearing a mask, known as a Hudson mask, and would not be able to spit at him. Dr [A] held it down with some force; I know this because when the pillow was eventually removed after about 30 seconds, the mask was dislodged from where it had been placed on the patient's face. One of the nurses replaced the mask. As this was happening the patient was being manacled to the bed with all four limbs. I found this disturbing.

The restraints, I think, were all leg restraints; they were not wrist restraints. These restraints did not fit well and were both physically and clinically inappropriate for their use. I thought at the time it was excessive.

The patient did not appear to have suffered as a result of having a pillow forcefully applied to his face although the patient did not quite know what was going on.

Dr [A] then handed me the pillow and said:

"Keep holding the pillow here"

At the same time he held the pillow about 30 centimetres off the patient's face.

I held the pillow but could not hold it for more than a few seconds.

Dr [A] kept saying to me:

"Hold the pillow, hold the pillow"

He then said:

"If you don't keep holding it I won't help you"

I moved the pillow back twice at these instructions but I couldn't continue holding it so I just held the pillow with one hand by my side. I just felt it was so wrong to hold a pillow over the patient's face.

The patient looked quite frightened about the presence of the pillow.

67 The evidence was that after the pillow incident Dr C approached Dr D, who was described as the "Emergency Physician in charge at the time of the incident" to make a complaint to him. Dr D was not called to give evidence in the proceedings, but his record of interview with the internal investigators was in evidence. Dr D stated that when Dr C reported the matter to him (a matter of say 30 minutes or so after the incident) she could not be sure that the pillow had in fact come into contact with the Patient's face. According to the transcript of interview conducted with Dr D, Dr C had told Dr D, "a pillow had been employed by Dr A to prevent the man from spitting further". Dr D further recorded that Dr C felt that the pillow was "potentially smothering" the Patient although "she couldn't tell me that that was actually what happened". Dr D further stated that:

Again it sounded as though it was a dark environment and she couldn't give me any specific objective criteria that he was being smothered but she said that that was her concern from where she was standing.

68 Dr D was asked whether he could tell the Investigator (Nouran Tawfiq, Principal Investigations Manager for the respondent) "in as much detail as you can of what you remember what she said in regards to the pillow?" Dr D answered:

She was quite shaken up. She said that she had never seen a pillow used in that situation before, she said that she thought it was entirely inappropriate that a pillow was used at all whether it was for protection or otherwise. She did feel that there was an element of anger in [Dr A's] reaction in using the pillow. That was pretty much the specifics of what I heard. A lot of what she told me was about her feelings and her emotional component of what had happened as much as her concerns about her interaction with [Dr A] and the dose of medication used.

69 Dr D was asked whether he questioned Dr C "about the pillow at all about what she meant specifically?" Dr D replied "not particularly". Dr D was then asked about his use of the word "smothered". He replied:

I am pretty sure she used that word but again, it was a while ago and I can't be convinced that that was actually the word she used but her concern was that the pillow was being put across his face and potentially occluded his airway that was certainly one of her major concerns.

70 As senior counsel for the applicant observed, at no time did Dr C tell Dr D that the pillow was actually forcefully applied to the face of the Patient, or that it had been done so for 60-90 seconds or that it had occurred over two occasions.

71 Dr C then recorded the events of the evening in the Clinical Notes. She did so a matter of hours after the incident had occurred. In those notes, Dr C merely stated that:

The ED registrar then attempted to use the pillow which had been behind the patient's head as a barrier between himself and the patient.

72 Dr C sought to explain that the reason why she did not record in the Clinical Notes that the pillow had been forcefully used was because she did not want a record to be kept of the incident, as she knew that it would have a serious impact on Dr A's career.

73 On 28 May 2013, Dr C completed an "AIMS Incident Detail" in which she stated that Dr A had "forcefully applied pillow to patient's face whilst stating that he was not threatening the patient's airway to those present". She then stated that Dr A "re-applied the pillow (over the mask), releasing firm pressure after 30 seconds."

74 Dr C then participated in a telephone interview on 3 June 2013 with Mr Tawfiq. In the record of interview, it was said that when Dr A used the pillow on the first occasion:

One hand was firmly over the centre of the pillow which was the part of the pillow that was making contact with the patient's face and his right hand was on the edge of the pillow. So he wasn't applying force with both of his hands but with one hand on that occasion.

75 When Dr C was asked "...how were you able to tell whether the pillow was making contact with the patient's face?" she responded as follows:

The edges of the pillow were making contact with the bed sheets, so it was clearly being applied, I mean the patient's face is elevated above where the bed sheet is, so I find it difficult to understand if the edges of the pillow were making contact with the bed sheets, if it wasn't making contact with the patient's face as well the patient's chin was in contact with the edge of the pillow so it was definitely in contact with the patient's face.

76 Dr C was subject to vigorous cross-examination by senior counsel for the applicant, particularly regarding the placement of the pillow. Dr C's evidence, it will be recalled, was that Dr A used the pillow twice on the Patient. On the first occasion the pillow was held down "hard on the Patient's face". On the second occasion Dr C alleged that Dr A put the pillow over the Patient's head with some pressure despite the fact that the Patient was wearing a mask and was unable to spit at Dr A. Dr C alleged that Dr A held down the pillow with some force for about 30 seconds.

77 Dr C was cross-examined about the use of the pillow:

Q. Do you recall the patient punching Dr [A] and then spitting a large amount of saliva in his face?

A. I don't remember him punching Dr [A]. I do remember him spitting, but this was after the Haloperidol was given.

Q. Now, do you recall at that point that Dr [A] walked away so that he could wash his mouth and face, and returned about 30 seconds later?

A. No, I remember Dr [A], immediately after being spat at, pulling the pillow from behind the patient's head and holding it down over the patient's face hard. Then I remember Dr [A] standing there for a little longer, not applying as much force through the pillow. And then I remember Dr [A] saying looking at the patient's limbs flailing and struggling to get free of the people holding the patient down, and saying, "That's it. He's not going to settle. I can't do this" like, "I can't do this now. I want four limb restraints." And then walking off, away from me towards the acute area of the emergency department.

Q. What you've just told his Honour is false, isn't it, that Dr [A] put the pillow into the face of the patient?

A. It's true.

...

Q. It was at this point that Dr [A] picked up a pillow that was next to the patient and held it up approximately 10 centimetres from the patient's face as a shield to block the spit stream which was continuing, correct?

A. That's incorrect.

Q. And the total time the pillow was used was no more than five to 10 seconds, correct doctor?

A. Incorrect.

Q. And at about this time when the pillow was used Dr [A] said, "This will not obstruct his ventilation"?

A. On the second occasion which, so, the timeline is a bit different in my version of events to what you're suggesting. On the second occasion in my memory on the second occasion when Dr [A] held a pillow over the patient's head he did say that, yes.

Q. You know, don't you, that Dr [A] never forcefully applied the pillow to the face of the patient.

A. That's the opposite of what I remember.

...

Q. [RN2] has admitted that the pillow obstructed her sight of the patient's face. That's what [RN2] has told his Honour.

A. I don't know what that means with regards to me.

Q. Well she's admitted that she didn't actually see the pillow come into contact with the patient's face?

A. I did.

Q. You did. Do you want to reconsider your evidence?

A. So I can explain why I think that the pillow was contacting the patient's face, or rather how I knew the pillow was contacting the patient's face. I could see Dr [A]'s stance. I could see that he was applying force from over the pillow. I could see that the pillow was making contact with the bed sheets around the patient's face meaning that the patient's head had been depressed into the bed by the force of this happen; meaning that the pillow if the pillow's edge was contacting the bed sheets surely I can't especially standing directly opposite Dr [A] I cannot understand how he was not pressing the pillow on to the patient's face.

Q. So can we just come down to this proposition.

A. Yep.

Q. Is this the case; you assumed the pillow came into contact with the patient's face because of the stance of the doctor, correct?

A. Because of all the factors I've just outlined to you, not only that.

Q. But let's be clear about this to be fair to you. You assumed the pillow came into contact with the patient's face, correct?

A. I am convinced the pillow came into contact with the patient's face. Other than being under the pillow I could not have known with any greater certainty that this happened other than being under the pillow myself where the patient was.

Q. You didn't actually see I'm just trying to be fair to you doctor, that's all. You didn't actually see the pillow come into contact with the patient's face?

A. When the pillow is obscuring the patient's head, I don't understand how that can be a burden of proof that I have to carry to know what happened.

Q. Doctor, I'm not asking you to bear a burden of proof. I'm just trying

A. Sorry, I was using that colloquially. I don't know how you guys use it.

Q. It's fair to say that you made an assumption that the pillow came into contact with the patient's face, correct? You didn't see the pillow come into contact with the patient's face, you assume it did?

A. Yes, I was not under the pillow so I have assumed that.

78 Dr C was asked about her meeting with Dr D and how she described the use of the pillow to him:

Q. You never said to him the pillow was actually smothering the patient, did you?

A. I told him that he was forcefully holding it over the patient's head. And it had the potential to smother the patient. But I told him also that when the pillow was removed the patient was cyanosed and his level of consciousness had been compromised.

...

Q. Do you recall Dr [D] saying to you asking you for details and you telling him you could not tell him that this is what actually happened?

A. No. What would be the point of having a meeting with someone just to say I can't recall any of the details I'm about a tell you. It just doesn't make sense.

Q. I'm not saying that. I'm just saying, doctor, that's what Dr [D] recalls in the investigation.

A. I was I was at times, during that, sobbing and shaking because I was very emotional after seeing that. But I gave him, to the best of my ability at that time which I admit is different from my ability at this particular point in time, I gave him very detailed information about what Dr [A] had done and why I was concerned and why I thought the patient's safety was in jeopardy.

Q. What you told Dr [D] was that you were concerned the patient may have been smothered from where you were standing, is that right?

A. Yes.

Q. This is because from where you were standing you could not actually see the patient's face, correct?

A. As I said, I would have to be under the pillow to be able to see the patient's face.

Q. And you were surmising as to what happened.

A. I could see what was happening.

Q. I think you told his Honour earlier you agreed you assumed the pillow had come into contact with the patient's face?

A. On the same basis that I assume anything I see is true, yes.

Q. Is that your evidence, doctor?

A. That's my evidence.

79 Dr C was cross-examined about how long the pillow was placed over the face of the Patient:

Q. You told his Honour earlier that you made an assumption - let me finish - that you made an assumption that the pillow was placed on the face of the patient, correct?

A. I saw that and assumed it to be true.

Q. Doctor, you told the judge earlier that you did not see the pillow?

A. In contact with the face.

Q. On the face of the patient?

A. I couldn't see it in contact with the face, no one could see that about the patient.

Q. Do you still hold to your evidence that the pillow was kept on the patient's face for 60 to 90 seconds?

A. Since I made my affidavit I have tried to imagine it happening again and time how long it was there. And I have to admit that I think the timing is not accurate. It may be inaccurate.

Q. When was Ms Nomchong asked you earlier as to whether there were any corrections you want to make to your affidavit you said no?

A. It's not that I wish to correct it, I recognise that this was a very distressing thing to see and my estimations may not be if you were holding a stop watch at the time it may differ from my recollection, but I think

Q. How long do you now say?

A. I can't really say. That's what it felt like to me but I recognise that when you witness something like that the time can be a difficult thing to remember, to remember correctly.

...

Q. If, as you say which I suggest is completely false, that he held the pillow on the face of the patient for 60 to 90 second why didn't you press the duress button?

A. I was frozen.

Q. When you say you were frozen, what I want to suggest to you is that you completely lost it and you had no idea what was going on didn't you?

A. I knew exactly what was going on.

Q. You think you knew?

A. I knew what was going on.

80 Dr C was cross-examined about the manner in which she alleged Dr A held the pillow over the Patient's face:

Q. If you go to page 33. You are giving evidence about describing how the pillow was held, is that right?

A. Yes.

Q. And you say that on the first occasion that the pillow was held Dr A had one hand firmly over the centre of pillow and his right hand on the edge of the pillow?

A. Yes.

Q. Not applying force with both hands?

A. Yes. On the first occasion he was applying force through the hand on top of the pillow and on the second occasion he was applying force through both hands.

81 Dr C was cross-examined about the effect on the Patient of the pillow being placed over his face:

Q. And it is also in this interview isn't it for the first time you allege the pillow was used for the first time for about 60 seconds?

A. In this interview, I believe so.

Q. You say there was no harm caused to the patient there was no harm to the patient was there?

A. No physical harm that I could observe at the time.

Q. He was not breathless or gasping for air?

A. No he was not.

Q. There was no blue colouration of the skin?

A. No there was not.

Q. Or the lips due to low oxygen?

A. No, there was no cyanosis.

Q. If Dr A was forcibly applying the pillow for 90 seconds in total to a frail 94 year old delirious man, that would mean from your medical expertise he would be gasping for air?

A. I was surprised by that at the time and relieved.

Dr B's evidence

82 In her affidavit evidence, Dr B referred to her statement given for the purpose of the investigation into the incident:

In the Statement I have described how the patient spat into Dr [A's] face. In order to spit in Dr [A's] face, the patient had turned his head to the left and leaned forward. I have read Dr [A's] Affidavit.... At paragraph 35 he states that the spit went into his eyes, mouth and right ear. I did not see that. I remember the spit hitting his face but I cannot say exactly where it landed. Dr [A] also claims that the patient punched him twice on his left arm. I did not see that. I saw the patient flailing, attempting to hit people.

In the Statement, I refer to Dr [A] holding the pillow on the patient's face for approximately five to ten seconds. During this time, Dr [A] was performing no medical procedures on the patient. I also specifically remember him stating words to the effect:

"Don't worry, it won't impair his ventilation."

However, at no time did Dr [A] tell any of the other medical staff present what he was doing with the pillow or why. He just pushed the pillow on to the patient's face.

I did not say anything to Dr [A] because I was too shocked.

In the Statement I refer to "Dr [A] left at this stage". I can recall that Dr [A] left the room whilst [RN2] placed a mask on the patient's face and repositioned the pillow behind the patient's head. In Dr [A's] affidavit at paragraph 38 where he asserts that the oxygen mask was still folded and too small. I disagree. To my observation, [RN2] had properly applied the mask to the patient. The mask was not too small or still folded.

I cannot remember where Dr [A] left the pillow when he left the room.

Where in the Statement I refer to the pillow being used one more time, I cannot remember who used the pillow the second time, but it was used as a shield and did not touch the patient's face.

In my experience, spitting by patients at medical staff in the emergency department is quite common, albeit less so in the EMU.

In the time that I have worked at [The Hospital] in the Emergency Department (or indeed anywhere else), I have never seen a member of the medical staff use a pillow in the fashion utilised by Dr [A].

I found the whole incident distressing because I was shocked that something like this could occur. I felt helpless during the incident and was left questioning the judgement of Dr [A], a senior member of staff whose opinion I had previously sought and respected.

From my experience and observations, the correct practice where a patient spits at a medical staff member would involve that staff member first stepping back and making an assessment. Preventative measures include placing a mask on the patient (as [RN2] did here) or getting a spit shield or other protective equipment to shield the medical staff member.

83 In her written statement provided to the internal investigator on 12 June 2013, Dr B described the use of the pillow:

Dr [A] stated that the patient was to be sedated as he was going to scan his bladder with a bedside ultrasound.

...

It has been decided prior to my arrival to give [the patient] Haloperidol IM.

...

I positioned the patient's knees moving them towards me to allow the injection to be administered in [the patient's] right buttock.

...

Dr [A] asked me to hold the patient's left arm as he prepared the ultrasound.

He turned his back to the patient, turning on the USS and as he turned back towards the patient, the patient spat directly into Dr [A's] face.

Dr [A] took the pillow from behind the patient's head as [the patient] was leaning forward trying to get up.

Dr [A], using his left hand, pushed the patient into the bed with the pillow covering the patient's face.

He held the pillow on his face for approx. 5 - 10 secs and stated during this time that it wouldn't impair his breathing.

...

Dr [A] left at this stage.

When he came back he stated that he wanted restraints applied as the patient continued to lash out, remove the mask and spit. The pillow was used one other further time - over the face to protect against spitting but not pressed onto his face.

84 It will be seen that it was Dr B's affidavit evidence that Dr A held the pillow on the Patient's face for approximately five to ten seconds. Dr B said the pillow was used a second time, but she could not remember who used the pillow on the second occasion. In any event, Dr B said it was used as a shield and did not touch the Patient's face.

85 In examination in chief, the following exchange occurred between senior counsel for the respondent and Dr B regarding the use of the pillow on the first occasion:

Q. I think you told his Honour just then that it commenced from the point of sedation. What was it about that that caused you to be distressed?

A. Well, it's that when you - in this case we gave him an IM which is a promuscular injection. It takes a while for it to work but once we gave him the injection he became very distressed and physically combated and then we restrained him. We commenced almost immediately to try to do an examination of him. We just - instead of giving it time, time to calm down and to work, we commenced immediately into what we were doing at that time rather than just taking a step back.

Q. The next thing that you told his Honour that you found distressing was the use of the pillow?

A. Yes.

Q. What was it about that that you found distressing?

A. I found it very distressing that - because it's something I've never, ever seen done. Something I never expected to see in my medical career when it was the fact it was physically applied to his face. the Patient was sitting up in the bed and physically pushed back on to the bed with a pillow. I find it very distressing that someone who had taken medical advice from would do something like this.

86 Under cross-examination, Dr B was asked about the use of the pillow by Dr A:

Q. So what happened was Dr A did push the Patient down because he was leaning forward, trying to get up as you said in your evidence?

A. Hmmm.

Q. He didn't have the pillow at the time he did that; do you agree?

A. No. He did have the pillow.

Q. You are mistaken. He didn't have the pillow. The Patient at that time as you said at page 12 of your statement, was leaning forward, trying to get up, trying to climb out of the bed?

A. Trying to sit up in the bed.

Q. Not sit up. The words you used were "leaning forward, trying to get up" to get out of bed?

A. To get up.

Q. What Dr A did was to push the Patient back down because he was leaning forward, trying to get up at a time when he was acting violently; that's correct?

A. Dr A pushed him down with the pillow on his face.

Q. He did not. You are wrong about that doctor?

A. I disagree.

Q. You know for a fact that in respect of the incident that led to Dr A using the pillow as a spit shield was that the Patient was spitting; that's what triggered the pillow being used?

...

Q. The pillow was used after the Patient began spitting?

A. I stated specifically that it was used twice that the Patient spat on Dr A, then the pillow was used physically to push the Patient down into the bed. On the second occasion, the pillow was used as a shield but at that time, I didn't specifically see who it was used by. It's not something I can remember.

Q. At the time the Patient spat at Dr A that you saw it for the first time?

A. Yes.

Q. Dr A didn't have a pillow in his hand because he was treating the Patient?

A. Dr A didn't have a pillow in his hand the first time the Patient spat on him because the pillow was behind the Patient's head.

Q. You have given evidence that the Patient spat on Dr A's face?

A. Correct.

Q. When that happened, Dr A did not have a pillow in his hand?

A. When the Patient spat, no.

Q. In fact, when the Patient was leaning forward and trying to get up, as you said in your evidence, that is when Dr A tried to push him down at that point but he did not have a pillow in his hand?

A. When the Patient spat on Dr A face in that--

Q. --leaning forward?

A. Leaning forward, trying to get up.

...

Q. Would you agree with this. At the time of this spitting occurring the Patient was leaning forward and trying to get up; that's what you said?

A. When the Patient spat?

Q. Yes.

A. The Patient was leaning forward and his face turned towards Dr A--

Q. --trying to lean forward, trying to get up. That's when the spitting occurred?

A. That's when he spat.

Q. And that's the point where Dr A pushed the Patient down at that point because he was attempting to get up; correct?

A. With the pillow.

Q. You say with the pillow. I'm putting to you without the pillow.

A. With the pillow.

87 Dr B was cross-examined about the location of certain equipment and where she was positioned at the time she alleged Dr A applied the pillow to the Patient's face:

Q. So just going back, if I can, I think you agreed with me earlier in terms of the proposition I put to you that you were standing on the left hand side of the Patient when the spitting was occurring, is that right?

A. I was standing on the left side, yes.

Q. You were standing on the left of Dr A, correct, you have agreed with that proposition?

A. Yes.

...

Q. This is annexure A to Dr A's first affidavit. Now, you will see there is a box which is at the top of the bed, do you see that on the left?

A. Yes.

Q. On that side of the bed, do you see that?

A. Yes.

Q. That is on the left hand side of the Patient, do you know what that box is?

A. The box that says "box"?

...

Q. Do you know what the item is, let's do it this way. On the right hand side of the document I have given you it has USS, do you know what that is?

A. I thought you said it meant the box that says "box"?

Q. What is USS?

A. The ultrasound scanner.

Q. On the left hand side is a box there, correct, do you know what that is?

A. The box that contains the masks, et cetera.

Q. Because where the ultrasound scanner is it means yourself and Dr A had to move down alongside the bed for the ultrasound scanner?

A. No, the ultrasound scanner is slightly further back, it's not directly against the bed.

Q. It takes up space alongside the bed, do you agree with that?

A. It is not very big and Dr A was actually standing more so between it, so it is further pushed up in the corner.

Q. That is the ultrasound scanner that takes up space alongside the bed?

A. It is going to take up a certain amount of space.

Q. It does, doesn't it?

A. Not that much space.

Q. You might recall I put to you earlier that you had been directed by Dr A to go down to the foot of the Patient and you were to hold the foot of the Patient?

A. I was directed to hold the Patient's left arm.

...

Q. Do you know about the ultrasound scanner, it is on a portable stand, are you aware of that?

A. Yes.

Q. Do you know how wide it is?

A. The exact dimensions, I couldn't tell you the exact dimensions of the ultrasound scanner.

Q. You have no idea, is it as wide as that TV?

A. No.

Q. 50cm by 50cm?

A. Probably about that.

Q. It tends to occupy most of the space between the beds?

A. It depends where you put it, what you are ultrasounding.

Q. Putting it between the beds in the EMU, it takes up most space there, there is not much space between the beds?

A. There is a gap between the ultrasound machine and the bed to my recollection.

Q. Not much, is there?

A. Enough for somebody to squeeze in between it.

...

88 Dr B was cross-examined about the effect on the Patient of the pillow being placed over his face:

Q. You do know, don't you, the pillow did not obstruct the Patient's breathing, you agree with that, don't you?

A. The pillow was pushed directly on to the Patient's face but it would be impossible to say what exact effect it had on the Patient's breathing.

Q. You know the Patient didn't have any blue discolouration to the skin, lips or anything, to divulge oxygen saturations?

A. None that I recall.

Q. You knew that at the time, correct?

A. Yeah.

Q. You don't give any account of checking the Patient's breathing and airways, do you?

A. No.

Q. During this incident, in addition to Dr A, there were four clinicians all within arm's reach of the Patient?

A. As in a doctor and two nurses and myself?

Q. Correct?

A. Yep.

Q. None of those persons told Dr A to stop it or that it was inappropriate?

A. No one said anything.

Q. None of those persons put a hand on the pillow, or Dr A, you evidence doesn't say anything about that, does it?

A. No.

Q. Because that didn't happen, correct, do you agree with me, doctor, and if you say you don't know or you can't recall, say so so I can move on?

A. Can you ask the question again?

Q. I put to you the proposition in your affidavit you don't suggest that any of the persons present put a hand on the pillow or Dr A, correct?

A. They didn't, no.

RN1's evidence

89 RN1 referred to the incident in her affidavit:

Dr [A] says that the patient spat a large amount of saliva into his mouth eyes and right ear. I did not see that.

However, I remember looking up and seeing a pillow horizontal across the patient's face. Dr [A] was holding the pillow over the patient's face. He had a grasping hold across the pillow horizontally.

I don't recall Dr [A] performing any procedure at the time he was holding the pillow over the patient's face. He held the pillow in his left hand. He was gripping the pillow and to some extent scrunching it up. I saw the patient moving. It looked like the patient's face touched the pillow, as if he was raising his head upwards.

The pillow certainly obstructed the sight of the patient's face from my view. So I presume that his face was on or near the pillow. I did see the patient try to sit himself up, so I gather his face at least touched the pillow then.

I don't recall Dr [A] saying anything to the patient or to the rest of us about why he was holding the pillow over the patient's face. I had come into the cubicle at a time where it appeared that treatment was already in progress.

I can't remember how long Dr [A] held the pillow across the patient's face but perhaps a couple of minutes. Not as much as five minutes but maybe two minutes.

I remember at the time that I thought it was very unusual to use a pillow like this, particularly across a patient's face. I didn't think it was a good choice because the pillow was thick and it stopped you seeing what was going on with the patient. I couldn't see the patient's face. I think if you were going to use a pillow like that, it should have been held a couple of inches away and down from his face so that you could at least see the patient's mouth and check his airway.

I questioned (in my own thoughts) whether the patient would be able to breathe properly. I am always worried about patient's airways. Even when I worked in anaesthetics, we make sure you can see the patient's face and mouth, to watch their breathing.

Dr [A] then left the area.

Dr [C] and the other doctor looked tense.

I remember that I saw that [RN2] put an oxygen mask on the patient.

At paragraph 38 of Dr [A's] affidavit, he says that the oxygen mask was too small and still folded when it was placed on the patient. That is not my recollection. When I saw the mask, it looked as if it had been put in position by [RN2].

At that point, I remember seeing the pillow sitting half across the patient's face. It wasn't like it was before when Dr [A] was holding the pillow across the patient's face. When he had the oxygen mask on, you could see the patient's face.

I am a bit fuzzy about how the pillow got there the second time. I think Dr [A] left it there but I cannot be sure.

I cannot recall when, but at some time before [RN2] applied the oxygen mask, the patient had lunged at me. I remember talking to him to try and pacify him. I said something like:

"We're trying to help you, you'll be safe. We are the nurses and doctors and you have been sick."

He lunged again at me and tried to spit in my face.

Dr [A] then returned to the bed.

I can't remember precisely when but Dr [A] called for someone to get restraints. I remember I helped put a leg restraint on his bottom right side of the leg of the patient.

The patient was then moved to RESUS.

90 In her interview on 31 May 2013 with the internal investigators, RN1 stated:

... I looked up and I saw a pillow horizontal across the patient's face. The doctor had his hand on it... he had a hold across the pillow horizontally... I can't say because I was at the bottom of the bed whether it was on the patient's face or what, but I know it was horizontal across his face.

...

I do know that the pillow was directly horizontally across his face. The doctor was the one that was holding it and then [RN2] had put the face mask on, I gather to stop the fellow spitting and so give him some space between the pillow.

...

But we were present certainly and it was definitely the doctor that had his hand on the pillow and holding it there over that period of time. It probably would have been at least a couple of minutes I suppose.

...

.... I thought because the pillow is thick and I had no idea really what is happening to the patient. I did see some movement underneath where the patient looked as if he might have been trying to lurch himself up and I gather his face touched the pillow. I wouldn't say, I couldn't say whether it was directly on his face or whether it was hovering over it or whether it was right on his face because I was looking directly onto the pillow.

91 It will be seen that RN1's affidavit evidence was that Dr A was holding the pillow in his left hand over the Patient's face. RN1 said it looked like the Patient's face touched the pillow, as if he was raising his head upwards. RN1 stated that the pillow "certainly obstructed the sight of the Patient's face from my view. So I presume that his face was on or near the pillow." RN1 said she saw the Patient try to sit himself up and gathered his face at least touched the pillow then.

92 Under cross-examination RN1's evidence was consistent with what she had deposed. The following exchange occurred about the use of the pillow and the effect of it on the Patient:

Q. You say that the patient was trying to sit up? This is your affidavit I'm talking about?

A. Yes. Well, the patient well, there was two occasions I saw. It was like he indented the pillow at some stage. I could just tell there was a movement from his, sort of, neck, he was trying to go up. And the other time was when he actually lurched forward at me with a wild look in his eye.

Q. So even when the pillow was being used the patient was lunging about trying to sit up, correct?

A. At that particular time he was.

Q. And when you say in paragraph 12 that the pillow was used for a couple of minutes, it was more like five to ten seconds; would you agree with that?

A. It's hard to tell. That's why we use our watch to check respirations and do a pulse. But, you know, it wasn't like it was half an hour. I wouldn't say that it was five minutes. I could perhaps say a minute to two, the best I could do, unless I was actually watching my watch. It's very hard to tell.

Q. But the fact is I think what you've just recounted to his Honour is you can't be certain for how long it was used; would you agree with that?

A. No, but then I wouldn't have said it was, sort of, a really long time such as five. I think that's about right, and maybe two minutes.

Q. And if I suggest it was more like five to ten seconds, would you disagree with that or it may be right?

A. I wouldn't be able to say, agree with that.

...

Q. You said earlier that you were focusing or concentrating on what you were doing at the time, which was at the foot of the bed. You're not suggesting that you saw at all times the Hudson Mask on the patient, properly placed on the patient? Your eyes weren't fixated on the patient's face all the time, was it?

A. No. When I looked and saw [RN2] put it on and then when I saw it, you know, a few seconds after that it certainly seemed to be on his face properly.

Q. A few seconds after that; is that right?

A. Well, I saw her go up to the blue bins, shift the pillow a little bit further away so it was more at an angle and put the face mask on. At that time and then also I'm still, sort of, trying to count how many seconds, it seemed to be on all right.

Q. From where you were standing in the dim light you could not be certain, I think this is the position, isn't it, whether or not the pillow was in contact with the patient's face, correct? From where you were standing you could not be certain whether the pillow was in contact with the patient's face, correct?

A. That would be correct because, you know, the patient's there and I'm looking at him from here. There's obviously a pillow, I can't see underneath it. But I did see movement of that patient at some stage. It was sort of like his neck had moved

Q. Forward?

A. Yeah, it was like an indent, an indent had come up on to the pillow. So I did see that. I know at that stage his face would have at least touched the pillow. There was movement underneath the pillow.

Q. You know that the pillow didn't obstruct the patient's breathing?

A. I know, is that what you're saying?

Q. Yes.

A. Well, I wouldn't be able to say, but it didn't appear so because I certainly was watching his chest.

Q. And the patient wasn't breathless, on your observation?

A. He seemed to have slightly faster respiratory rate. I suppose because he might have been just because he was a bit confused and things. He was probably a little bit stressed. I wouldn't be able to say. I didn't stand there and do his respiration rate. It looked maybe just slightly faster than normal, but I wouldn't be able to say exactly what his respiration were. And I wouldn't be able to say whether his airway had been blocked or not, no.

Q. You don't give any account in the AIMS report or in your affidavit of needing to check the patient's breathing and airways, that is you personally, do you?

A. No, but I was keeping an eye on his chest to see whether it was rising, and as soon as it wasn't going to be rising I would have been saying something.

...

Q. When you were interviewed in terms of the departmental investigation, I think this is right, isn't it, you were asked a question in respect of the pillow and what you said as to what you could or could not see happening and you said there was no way you can see through 2 inch pillow from that position, that is the position where you were standing. Do you recall saying that to the investigators?

A. Yes, yes, that's true. Taking when I said before that I could see the patient had moved, I recognised there was a movement underneath the pillow, but you couldn't actually from my point of view I wouldn't be able to specifically see what was happening underneath the pillow.

RN2's evidence

93 RN2 also prepared an affidavit. Her description of the incident was in the following terms:

It is standard practice when the patient is to be administered IMI Haloperidol medication for the patient to be physically restrained. This practice is necessary to ensure staff safety from sharps when dealing with an acutely confused patient.

Another nurse, [RN1] came to assist with the restraining of the patient. I don't know who had asked the other staff but in addition to RN1 and me, there was Dr [B], Dr [C] and Dr [A].

Dr [C] was on the patient's right, restraining his right arm. Dr [A] was restraining the patient's left arm.

[RN1] and Dr [B] were restraining the patient's legs.

Dr [A] told me to administer the Haloperidol.

The patient was lying on his left side and whilst he was restrained in that position, I administered the IMI injection into the patient's right buttock.

I then moved to the end of the bed.

The patient was then moved so that he was lying on his back. He was becoming more confused and agitated.

Before waiting for the sedative to take effect, Dr [A] commenced the bladder scan straight away.

As he did so, the patient, turned his head around and spat directly into Dr [A's] face. The spit landed on Dr [A's] right side of cheek. I have read Dr [A's] Affidavit and say that I did not see the spit go into his eyes, mouth and right ear as he claims. I only remember it hitting his right cheek.

Dr [A] did not say anything to anyone present before he then picked up the pillow that was under the patient's head. I had an unobstructed view of Dr [A] and I saw him use his left hand to hold the centre of the pillow and then hold it down firmly the patient's face. It was a standard size hospital pillow. I saw from Dr [A's] body movement that he was pressing it down and the pillow made contact with the patient's face.

Dr [A] pressed the pillow down on the patient's face for about 4 to 5 seconds but I cannot be sure of the exact amount of time.

I didn't know what to say. I was completely shocked and I wasn't sure how to react.

Dr [A] then left the bed. Whilst Dr [A] was away, I picked up an oxygen mask (known as a Hudson mask). I unfolded it and placed it on the patient. I did this and secured the mask with a strap. The mask fitted properly. I have read the Affidavit of Dr [A] at paragraph 38, where he says that the mask was still folded and not properly placed on the patient's face. I deny that. I have placed numerous oxygen masks on patients. I know how to do it and I know that on this occasion, it was unfolded and properly applied to the patient.

I placed the oxygen mask on to prevent further spitting and to stop Dr [A] using the pillow again.

After I had placed the oxygen mask, I then left to put the syringe into the sharps bin.

When I returned, I saw Dr [A] again holding the pillow directly above the patient's head for the second time.

The patient was moving around trying to look from under the pillow. I saw that the mask had moved on the patient's face as he did so.

Dr [A] wanted restraints for the patient.

I then went to get the restraints and when I returned, these were applied to the patient. He was then moved to RESUS for sedation prior to the bladder scan.

94 In her AIMS report RN2 indicated what she saw on the first occasion it was alleged Dr A used the pillow:

IMI Haloperidol prescribed... IMI given. Pt spat in Dr (de-identified) face who picked up a pillow and was witnessed holding the pillow over the patient's face firmly.

95 In the internal investigation interview on 30 May 2013, RN2 stated:

I administered the IMI injection ... Dr [A] proceeded to do a bladder scan at which time the patient turned around and spat directly in Dr [A's] face. I then saw Dr A pick up a pillow ... Dr A then took the pillow and put the pillow onto the patient's face, he made firm contact with the patient's face and then pressed down on the patient's face for about 4 to 5 seconds with one hand.

96 It will be seen that in her affidavit RN2 stated that Dr A picked up the pillow that was under the Patient's head and using his left hand to hold the centre of the pillow he held it "down firmly the patient's face"(sic). RN2 said she saw from Dr A's body movement that he was pressing it down and the pillow made contact with the Patient's face for about 4 to 5 seconds.

97 RN2 said when Dr A left the bedside she placed a Hudson mask over the Patient's face "to prevent further spitting and to stop Dr [A] using the pillow again." RN2 then left for "two seconds" to put the syringe into the sharps bin. When she returned she saw Dr A again holding the pillow directly above the Patient's head for the second time. The patient was moving around trying to look from under the pillow. RN2 said she saw that the mask had moved on the Patient's face as he did so.

98 RN2 was cross-examined about the placement of the pillow:

Q. From where you were standing in the dim light you could not be certain whether or not the pillow was in contact with Patient 1's face?

A. But I could physically, Dr A's stance gave the, I could actually see that the pillow had made contact with Patient 1's face.

Q. So is this your evidence, you didn't actually see the pillow come into contact with Patient 1's face but you assumed that because of the stance of Dr A?

A. Yes.

99 RN2 was cross-examined about the effect of the pillow being placed over the Patient's face and the reaction of the clinicians:

When you applied the Hudson mask, this is the position isn't it, Patient 1 was not breathless, correct?

A. Correct.

Q. And there was no blue colouration of the skin or lips due to low oxygenation?

A. Correct.

Q. You don't give any account of needing to check Patient 1's breathing and airways?

A. Correct.

Q. And during, if I can call it the pillow incident, in addition to Dr A there were four clinicians all within arm's reach of Patient 1, correct?

A. Yeah.

Q. And that was yourself, Dr B, Dr C and RN 1?

A. Yes correct.

Q. And none of those persons, according to your affidavit, told Dr A to stop or that it was inappropriate, correct?

A. Correct.

Q. And none of those person put a hand on the pillow or Dr A, do you agree with that?

A. Sorry?

Q. None of the persons put a hand on the pillow or Dr A?

A. Correct.

Move to RESUS

100 Following the pillow incident, and after arranging with the Nurse Coordinator for a bed for the Patient in RESUS, Dr A stated in his affidavit:

I returned to Patient 1 immediately and transferred him to Resus.

Upon arrival in Resus I administered 0.5mg of Midazolam intravenously to Patient 1 two times and within 30 seconds the patient calmed down to an acceptable level of sedation.

I wheeled the patient to Resus alone (40 metres) and the other EMU team members did not accompany, assist me or facilitate handover.

Once Patient 1 was calm I performed the ultrasound, which showed that Patient 1 was retaining urine. I inserted a catheter, draining 500mls of urine.

I asked another Resident Medical Officer to arrange a brain CT for the patient while I accompanied the patient to CT. The results as predicted showed no acute pathology. I arranged further tests and did a thorough physical examination of Patient 1.

101 There does not appear to be any issue about Dr A's evidence in moving the Patient to RESUS.

Dr A's meeting with Dr D

102 After he had finished treating the Patient Dr A returned to the "Bridge", which is the main workstation in the ED. Approximately 90 minutes after the incident he said Dr D approached him. Dr A said the following exchange occurred:

Dr D: Dr C told me of an incident this evening and that she had felt belittled and bullied. She was concerned about your use of the pillow as a shield

Me: I used the pillow as a last resort as a spit-shield in circumstances where the Hudson mask was not an effective barrier to the patient's spitting. I am sorry if Dr C felt belittled. This was never my intention and not how I remember the events of the evening but it was an urgent situation and I was focused was on the patient's safety and the safety of the staff.

103 Dr D was not called to give evidence for the respondent, however his record of interview with the investigators was in evidence. The record indicates that according to Dr D, Dr A was surprised Dr C had expressed any concern, but he was not surprised about the nurses expressing concern. Dr A had indicated to Dr D that nurses had made complaints about him on previous occasions. Dr A also said to Dr D that the nurses were not helpful as he tried to sedate the patient.

Reporting of the pillow incident

104 I have already referred to Dr C's conversation with Dr D when she briefly described the pillow incident and her concern that it had occurred. Dr C described herself as exhausted and emotional after the incident and Dr D excused her from further duties in the ED for the remainder of the evening. Dr C said she paged the medical registrar in charge of the hospital and handed the Patient over and told her what had happened.

105 After this, Dr C felt able to write up the patient's record what had occurred in relation to the pillow incident. Dr C said she wrote in the record

[K]nowing that if this came out it would have an immediate and devastating effect on Dr [A]'s career. However, I felt strongly that the event needed to be accurately recorded and properly followed up.

106 On the following Monday morning Dr C spoke to the Clinical Superintendent about the incident. The Superintendent confirmed that Dr C should write in the AIMS incident report what Dr A did to the Patient. Dr C did this on 27 May 2013.

107 On 3 June 2013, Dr C was interviewed by phone by an Investigation officer, and a human resources consultant from the Hospital. She was subsequently provided with a draft copy of the interview notes, which she checked and edited.

108 Following the incident, Dr B said there was a discussion at the nurses station with RN2, Dr C and RN1. Dr B said:

We all stated that we were shocked by the incident and I recall [RN2] saying words to the effect:

I'm completing an AIMS report in relation to the matter this evening.

I do not recall speaking to the other nurse. In those circumstances, I did not think I needed to complete my own AIMS report....

109 RN2 agreed that following the incident there was a discussion in the nurses station, to the following effect:

RN2: We should do an AIMS report about the incident.

RN1: OK.

110 RN1 agreed that an AIMS report should be done because the use of the pillow was very unusual.

111 On 26 May 2013, RN1 prepared an AIMS Incident Detail near the end of her shift. Later, RN1 was informed that there was an internal investigation and she was interviewed over the telephone on 31 May 2013.

112 RN1 was subsequently provided a transcript of that interview. She corrected the transcript of the interview and returned it.

The investigation

113 Dr A received a letter from the Director of Operations of the Health District dated 28 May 2013. The letter advised Dr A that it had been reported he had placed a patient at serious risk of harm. The letter advised him a risk assessment had been conducted and it had been determined Dr A should be suspended from duty with pay from 28 May 2013. Further, that there would be an investigation into his conduct.

114 Dr A was also advised that the Health District intended to contact the Police to determine when it was appropriate to conduct an internal investigation. If the investigation was permitted it would take place in accordance with the Health District's relevant policies and procedures.

115 The risk assessment, carried out by Dr G, Director of Emergency Medicine, described the allegation against Dr A in the following terms:

Reacting to being spat on by holding pillow onto face of agitated elderly patient in the EMU ward of the Emergency Department at [the Hospital]. No long term adverse impact to patient.

116 The risk assessment noted Dr A's claim that the pillow did not touch the face of the patient, but also noted Dr A's account was inconsistent with those of other staff involved. The risk assessment also stated:

Dr A has been spoken to on two occasions since starting work here in January 2013 for failing to interact appropriately with other staff. He has demonstrated insight as to his deficiency and has shown evidence of improvement before this incident.

117 The risk assessment recommended:

Increased supervision with formal Performance Management process with clear understanding that any further loss of control in the workplace or difficult encounters with other health professionals will result in dismissal.

118 It is a condition of the Disciplinary Policy and NSW Health that all allegations of possible criminal conduct must be reported to the NSW Police Force. The Chief Executive of the respondent gave evidence that given the information contained in the AIMS reports suggested that Dr A had potentially assaulted the Patient, there was a requirement in this instance to make a report to the Police. I understand that the Patient did not wish to pursue the matter and so the Police took no action against Dr A.

119 Following the letter from the Director of Operations it would appear that the applicant sought legal assistance from his solicitors. There followed correspondence backwards and forth between representatives of the respondent and the applicant and/or his solicitors.

120 On 3 June 2013, the applicant was advised by Mr Tawfiq of the allegations against him and that an investigation would be conducted by the Professional Practice Unit of the respondent assisted by the Hospital's Director of Clinical Services and a senior Human Resources Consultant.

121 On 19 June 2013, the applicant was advised by the Chief Executive that the investigation had been completed and that the Chief Executive was inclined to make the following findings:

Preliminary Findings

Allegation One - That on 25 May 2013, in the [Hospital's] Emergency Department, you forcefully applied a pillow to the face of a patient [name redacted], in response to his spitting at you. Sustained.

Allegation Two - That on 25 May 2013, in the [Hospital's] Emergency Department, you again forcefully applied a pillow to the face (over a Hudson mask) of patient [name redacted]. Not sustained. Insufficient Evidence

122 The applicant was offered seven days to provide any submissions as to why the Chief Executive should not make the findings quoted above.

123 On 3 July 2013, the applicant's solicitors responded to the preliminary findings and in an extensive reply argued why the findings should not be made.

124 In a letter dated 14 August 2013, the Chief Executive addressed five aspects of the submissions made by the applicant's solicitors. The Chief Executive was not persuaded to change the preliminary findings and Allegation One was sustained. The Chief Executive advised Dr A that it had been recommended that Dr A's employment be terminated on the grounds of serious breach of conduct and that the Chief Executive was inclined to accept the recommendation. The applicant was given seven days to provide reasons why his employment should not be terminated.

125 Whilst the applicant's solicitors responded, by this time the applicant had initiated proceedings in the Commission as explained earlier in this decision.

Notification to Medical Council

126 Pursuant to ss 140-142 of the Health Practitioner Regulation National Law (NSW) ("National Law"), employers of a registered health practitioner must notify "notifiable conduct" to the Australian Health Practitioner Regulation Agency (AHPRA). The definition of "notifiable conduct" includes conduct that has "placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards".

127 The Medical Council of NSW is an organisation within the APHRA network and is the body which deals with "notifiable conduct" relevant to medical practitioners in NSW.

128 The Health District considered that Dr A's conduct fell within the definition of 'notifiable conduct". By letter dated 7 June 2013, the Health District notified the Medical Council of NSW of the pillow incident.

129 A panel of two medical practitioners interviewed Dr A on 4 March 2014. The panel had access to various documentation, including the Investigation Report of the respondent, AIMS Incident Detail Reports, transcript of phone interviews with RN1, RN2, DR C and Dr C's handwritten notes.

130 The panel's recommendation to the Conduct Committee was "No Further Action".

Evidence of Chief Executive

131 The Chief Executive of the Health District gave evidence for the respondent. The Chief Executive was responsible for managing and controlling the affairs of the Health District as required by s 24 of the Health Services Act 1997. The Chief Executive referred to the Position Description for Advanced Trainees within the ED of the Hospital, of which Dr A was one. The requirements for the position of Advanced Trainee (in summary) were:

(a) the safe, adequate, appropriate and timely assessment, management and/or referral of patients;

(b) the performance of procedural skills relevant to Emergency Medicine;

(c) communication of assessment and management decisions in relation to patient care to other staff;

(d) communication with patients and their families or carers regarding a patient's condition and management plans;

(e) maintenance of accurate and relevant patient documentation; and

(f) participation in relevant training, education and professional development activities.

132 The Chief Executive referred to Dr A's employment contract, which required:

1. compliance with all applicable public health organisation and hospital policies and protocols, and with applicable Policy Directives and Guidelines issued by the Department of Health, as amended and in force from time to time, including the NSW Health Code of Conduct;

2. ensuring that all services provided to patients are consistent with any instructions issued by your supervisor or department director, and any conditions imposed by the Medical Board of Australia;

3. maintenance of adequate hospital clinical records, including completion, within a reasonable time period following the patient's discharge, of patient discharge letters;

4. observance of general conditions of clinical practice applicable at the Public Health Organisation where you will be working from time to time;

5. demonstrating at all times courteous and professional behaviour towards patients, their family and visitors and other staff.

133 In accordance with the NSW Health Combined Delegations Manual the Chief Executive had the (non-delegable) authority to dismiss an employee in the Health District. Accordingly, his involvement in disciplinary processes was generally reserved for matters of serious misconduct and, where required, would involve determination of:

(a) the proposed outcome as to findings in relation to a disciplinary investigation;

(b) the established findings of a disciplinary investigation following consideration of any show cause submissions from the employee;

(c) the proposed penalty in relation to a finding of serious misconduct; and

(d) the actual penalty to be imposed following consideration of any submissions from the employee in relation to penalty.

134 The Chief Executive deposed in his affidavit that in general, when an investigation and/or disciplinary process was at one of these decision-making stages, those decisions would be referred to him by the relevant officer within the Health District, together with their analysis and recommendations. In making his decision, the Chief Executive would give consideration to such advice, but would ultimately make his own determination. He said he followed this same practice in respect of Dr A.

135 The Chief Executive described the disciplinary process followed in respect of Dr A. In relation to Allegation One, the Chief Executive deposed in his affidavit that:

I was mindful that three of the four witnesses to the Incident had corroborated the crux of the allegation, that is, the application of a pillow to the patient's face. That evidence was given by Dr [C], Dr [B] and [RN2]. The fourth witness, [RN1], although unsure if and with what force the pillow had come into contact with the patient's head, was standing at the end of the bed and had seen Dr [A] hold the pillow horizontally over the face of the patient and otherwise provided an account in keeping with the evidence of the other witnesses.

I understood that there were variations in the accounts of the witnesses (particularly as to the period of time during which the pillow was applied) but those variations did not cause me to disbelieve their central description of Dr [A] applying the pillow with force to the patient's face.

I determined that certain factors were non-controversial. These were that the patient was elderly, had sustained a number of falls and had become agitated and aggressive whilst at the Hospital. Second, it was clear that the patient had spat at Dr [A]. Third, it was common ground that Dr [A] and no-one else had acquired the pillow. Fourth, it was clear that Dr [A] had held the pillow in the vicinity of the patient's face.

The question for me to determine was whether Dr [A] applied the pillow forcefully to the patient's face. I found that the circumstances that prevailed were that Dr [A] reacted defensively and deliberately in response to the spitting by picking up the pillow. He made no inquiries of the other staff as to the availability of spit shields, face masks or something else that could be used to deflect the spitting. He immediately picked up the pillow. That indicated to me that he lost his composure. That is something I took very seriously as clinical staff are required to be as calm and rational as possible so that they make appropriate decisions regarding patient care.

Given the fact that Dr [A] was a mature man with many years experience as a doctor, I would have expected him to have the requisite skills to deal with a patient in this state. The fact that he did not was of deep concern to me.

I took into account that the witnesses were in very close proximity to Dr [A] - they were all standing around a standard hospital bed within 1-2 metres of each other. I took into account that by their observations of the scene and from the various body movements of both the patient and Dr [A], they would be likely to be able to differentiate between a pillow held so that it hovered above the patient's face and a scenario where the pillow was applied to his face.

I therefore determined that Dr [A] had not merely held the pillow over the patient's face nor did I believe that the patient's face had merely glanced into the pillow as he was flailing in his delirious state. Rather, I determined that Dr [A's] actions were a deliberate retaliation to the spitting incident and that he forcefully applied the pillow to the patient's face. Whether it was for 5 seconds or two minutes was immaterial. The use of the pillow in that fashion was wholly unacceptable.

136 In relation to Allegation Two, the Chief Executive deposed:

[T]his involved the allegation that when Dr [A] returned to the bed, he again applied the pillow forcefully to the patient's face. I took into account the factors that I have described above but the weight of evidence about this second occasion did not convince me to the requisite level. I was persuaded that Dr [A] had picked up the pillow again but I was not persuaded that he again forcefully applied the pillow to the patient's face. That conduct of itself was, in my view, highly inappropriate but did not meet the standard to sustain a finding of employee misconduct.

137 The Chief Executive said he considered the submissions and material provided to him by the applicant's solicitors. In that respect, he stated:

I considered the submissions and their focus on the inconsistencies between the accounts of the witnesses. However, as I have stated above, I understood those inconsistencies but I was persuaded of the critical fact that three of the four witnesses had observed Dr [A] applying the pillow with force to the patient's face and that the fourth witnesses had seen Dr [A] applying the pillow horizontally over the patient's face and was unsure whether it had made contact with the patient's face. I formed the view that they would have been well able to tell the difference been a pillow being pressed into the face of the patient and a situation where it was being carefully held 10 cm over the face of the patient, as Dr [A] asserted in his video demonstration. To my knowledge, the witnesses had no reason to fabricate their story. Further, in my experience, it is a very serious matter for a staff member to make an IIMS report about another staff member, and for three clinical staff to do so in respect of the same incident, indicated to me that what they observed was a serious matter. That was consistent with the pillow being applied with force, rather than simply held over the patient's head.

138 The Chief Executive said he viewed two videos provided by the applicant's solicitors, which it was asserted provided a demonstration that the position of the pillow created a "parallax error" thereby impairing the view of the witnesses present. In that respect the Chief Executive deposed:

The videos did not persuade me to change my mind. The videos showed Dr [A] doing a demonstration using a soccer ball on a bed and holding a pillow over the ball. For the purposes of this "demonstration", the ball (representing the patient's head), the positions of the witnesses and Dr [A] are all assumed to be static. The patient was highly agitated and moving about to the extent that it required four people to restrain him. The patient's movements necessarily meant that the witnesses would also have been moving and were probably struggling to hold the patient. I considered that the ball was slightly larger than an average human head and because of its light weight, it was sitting above the level of the bed, whilst a human body sinks into a mattress. These factors render Dr [A's] demonstration that the edges of the pillow could not have been touching the mattress (as Dr [C] asserted) less persuasive. However, whether or not the edges of the pillow touched the mattress was not the central focus of the allegation. It was that Dr [A] applied the pillow forcefully to the patient's face. Finally the videos have Dr [A] remaining calm which, by all accounts was not the case.

139 The Chief Executive said he took account of several factors in determining that the appropriate disciplinary action was that Dr A's employment should be terminated. Those factors were:

(a) Pursuant to s119 of the Health Services Act 1997 the protection of [the Health District's patients and clients for whom [the Health District] is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff. In my consideration the conduct found against Dr [A] was of the most serious nature and was inconsistent with the duty of [the Health District] for patient safety.

(b) Forcibly holding a pillow to the face of a 94 year old patient in delirium, is wholly unacceptable, and represented a severe breach of the duty of care that both he and [the Health District] owed jointly to the patient, whatever the motivation for that conduct.

(c) Dr [A's] conduct was contrary to:

(i) the conditions of employment found in his Offer of Temporary Employment dated 13 November 2012;

(ii) the Medical Board of Australia's Good Medical Practice: A Code of Conduct for Doctors in Australia in particular at clauses 1.4, 2.2.2, 2.2.4, 2.2.7, 2.4.1, 3.2.1 and 4.4.5;

(iii) the NSW Health Policy Directive PD2005_608 Patient Safety and Clinical Quality Program in respect to patient expectations; and

(iv) the NSW Health Policy Directive PD2012_018 Code of Conduct in particular at clauses 4.1.1, 4.1.3, 4.3.10 and 4.3.11.

(d) Dr [A's] failure to acknowledge his wrongdoing was of great concern, as was his failure to show remorse or demonstrate empathy and insight into how the patient could have been affected. This lack of insight was particularly demonstrated within Dr [A's] show cause submissions dated 30 August 2013. I took the view that Dr [A] had trivialised the Incident by suggesting that the lack of memory of an elderly and confused patient meant that no harm had occurred to him.

(e) Dr [A's] failure to acknowledge the real possibility that the patient was likely to have been very frightened and may have been psychologically affected by having a pillow held on (or even over) his face, even though the patient had no memory of the event following the Incident.

(f) I was also deeply concerned that Dr [A] continued to assert that his conduct was an appropriate response to being spat upon by a 94 year old patient suffering delirium.

(g) I took the view that Dr [A's] assertion that it was an appropriate response and his failure to demonstrate insight into his poor conduct meant that there was a risk of repeated similar behaviour, particularly given the unpredictable nature of work within and in particular, the patients attending the Emergency Department.

(h) I further took into account that because Dr [A's] conduct appeared to be an automatic response to a patient spitting, the risk that he would repeat such conduct was likely where spitting by patients in the ED is a relatively frequent event.

(i) I was disturbed at the inference Dr [A] made in his show cause submissions that his "seniority" to the other witnesses was grounds on which his evidence should be preferred to theirs, as well as his assertions to the effect that the witnesses were motivated to discredit him. With regard to this latter point, I consider that the witnesses, in accordance with patient safety policy, were obliged to report their concerns and participate in the subsequent investigation process.

(j) Finally, I took into account that Dr [A] has at no time recognised the impact of his conduct on his colleagues nor apologised to them for his conduct.

140 The Chief Executive deposed that reinstatement or re-employment of Dr A was impracticable for the following reasons:

In my view, the employment relationship with Dr [A] has irretrievably broken down and cannot be repaired.

The [Health District] has no confidence in Dr [A] because of the conduct he engaged in on 25 May 2013 and because of his reaction to the Incident. For the reasons set out above, it is clear that I am of the view that Dr [A] engaged in serious misconduct in utilising a pillow and forcibly holding it on a patient's face. The aggravating circumstances were that it was clear that the patient was not in control of his faculties, being in a state of delirium. He was also very elderly. These are relevant factors but every patient deserves to be treated with dignity and respect and given quality medical treatment. No patient should be the subject of retaliation by a doctor for spitting - especially when it was self-evident that the patient was not in control of himself. No patient should ever have a pillow applied to their face in those circumstances and I find it difficult to imagine any circumstance where it would be appropriate.

Emergency medicine is a place where it is not uncommon for patients to behave in unco-operative, aggressive or even a violent nature. Spitting is not uncommon. This is for a range of reasons but usually associated with disorientation, had injuries or alcohol and substance abuse. As such, there is a very real likelihood that if Dr [A] were returned to the Emergency Department, situations would arise where patients were spitting and/or aggressive. For the reasons stated above, there is a real risk that Dr [A] would repeat such conduct, given he had asserted that the use of the pillow was an automatic (and appropriate) response to a patient spitting. I am not persuaded that Dr [A] would not act in the same fashion if faced with a similar scenario.

Put simply, if Dr [A] didn't think he did anything wrong, then there is nothing to convince me that he would not act in a like-minded manner again.

In my view, it would be unconscionable for any clinician, who has been found to have behaved as Dr [A] has done, to return to a clinical role where there can be no confidence that the clinician would not react in an equivalent manner should similar circumstances occur.

141 The Chief Executive gave oral evidence and was cross-examined. The following matters are relevant arising from the cross-examination of the Chief Executive:

(1) he was aware of the matters relating to the use of the Haloperidol, but this was not an allegation that was made against the applicant;

(2) he accepted no allegation had been made against the applicant that he inappropriately used the pillow as a spit shield;

(3) he did not consider there was any inconsistency between Dr C's statement to Dr D that "she felt the pillow was potentially smothering patient 1 although she didn't, she couldn't tell me that was actually what happened", and her later statement where Dr C alleged that she did in fact see the pillow being applied to the face of the patient forcibly.

(4) he had not read all of the relevant material including Dr C's clinical notes, Dr B's clinical notes and Dr A's clinical notes. The Chief Executive had not examined the position of the clinicians besides the Patient's bedside;

(5) whilst the Chief Executive accepted in cross-examination he had not read Dr C's clinical notes, in responding to a letter from the applicant's solicitors regarding inconsistencies in Dr C's position, the Chief Executive stated in his letter of 14 August 2014 in reply that "It is noted that there are inconsistencies in Dr [C's] evidence in relation to what she wrote in her clinical notes and what she stated later". The Chief Executive, however, expressed the view that these inconsistencies did not go to "the central question" of whether or not the applicant forcibly held a pillow on the Patient's face;

(6) he had no knowledge of any of the facts leading up to the incident, including details of the fact that the Patient had attempted to throw punches at Dr C and RN2, or that the Patient was attempting to climb out of the bed;

(7) he apparently accepted that no allegation was ever put to the applicant that the Patient had suffered psychological harm and that the applicant had never been asked to deny such an assertion and had not done so. He also accepted that in concluding that the Patient had actually suffered psychological harm as a result of the incident, he was speculating and had not applied the standard in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

Professor R's evidence

142 Professor R gave evidence for the respondent. His role was to facilitate action to continuously improve the safety and quality of clinical services provided by the Health District. Professor R deposed:

In my professional opinion the conduct of Dr [A] in holding a pillow over the face of an elderly confused patient as alleged would be a violation of:

a) patient-centred care as described in paragraph 6(a) above;

b) the duty to treat patients with respect and dignity; and

c) the duty to provide good care that is safe and effective, including taking steps to alleviate patient symptoms and distress.

The violation of these duties also constitute breaches of the standards of behaviour and conduct set out in the Medical Board of Australia's Good Medical Practice: A Code of Conduct for Doctors in Australia.

All patients should be treated with dignity and respect by health staff even if they demonstrate aggressive and anti-social behaviour.

The behaviour of Dr [A] could not be described in any way as being patient-centred nor could it be characterised as being the best interests of the patient or being done with the patient's (or his family's) express approval. In addition to being violations of the kind described above, holding a pillow of the face of this patient would be likely to further agitate him patient and consequently would be likely to exacerbate the already existing difficulty with treating and engaging with the patient.

Behaviour of the kind exhibited by Dr [A] could have also potentially limited the patient's ability to breathe. If it had continued, it could have led to suffocation, loss of consciousness or even death.

143 In cross-examination, Professor R was shown a letter to the Director of Clinical Services of the Hospital, signed by the Head of Emergency Medicine at the Hospital together with 18 other staff specialists, indicating their qualified support for Dr A and advising that they did not support immediate dismissal of Dr A. Professor R agreed these doctors were in a better position than he to make an assessment of the clinical consequences of the pillow incident, although his answer was given in the context of not knowing whether the doctors had full knowledge of Dr A's alleged conduct in respect of the use of the pillow.

144 Professor R further agreed that the use of a pillow as a makeshift spit shield held 10 centimetres away from the Patient for a period of 5 to 10 seconds would not be a breach of the various duties that Professor R outlined in his affidavit.

Evidence of NM1

145 NM1 gave evidence for the respondent. NM1 was employed by the Health District as Senior Nurse Manager of the ED of the Hospital and had held that position since October 2012. She qualified as a registered nurse in 1987.

146 The value of NM1's evidence was mainly the fact that she provided a hand drawn floor plan of the ED and explained the location of bays, beds and equipment. NM1 also explained that:

The beds within the EMU are laid out today and still have the equipment and facilities that they had in May 2013 except that a monitor screen has been installed on the wall above and to the right of beds 8, 9 and 10 since that time.

The beds are as they were in May 2013. The beds are narrower than a normal, single bed and permit convenient access to a patient from either side of the bed. The EMU beds are about 57cm wide and, they are normally placed in a position at about 83cm in height.

Rails can be lifted up each side of an EMU bed. When raised the top of the rail near the head of the bed is about 95cm in height. The rails are arched slightly and so, at the centre of the bed, when the rails are raised, they are about 98cm off the floor.

Adjacent to each EMU bed is a plastic box in which various supplies are stored. Now and in May 2013, these supplies are checked at the beginning of each shift by nursing staff to ensure that they are properly stocked. This storage box contains Hudson masks, amongst other things.

The Hudson masks are contained in plastic bags. The strap which goes behind the patient's head to keep the mask on is already affixed. It takes no more than a moment or so to remove a Hudson mask from the plastic bag and affix it to the patient's face. I have personally applied hundreds if not thousands of masks during my career as a nurse. Hudson masks may be attached to the oxygen valve on the wall behind each bed, if necessary.

147 In relation to spitting NM1 stated:

In my experience in Emergency Departments, I can say that spitting occurs fairly regularly. The reasons for a patient spitting can range from violent outbursts from a young adult male patient having a psychotic reaction to a methamphetamine overdose, to patients suffering delirium.

My usual response and, from my observations of other nurses and doctors in Emergency Departments, the usual response of other medical staff is to:

(a) grab a Hudson mask and apply it to the patient and once the mask was in place connect the mask to the oxygen supply;

(b) step back and try to de-escalate the situation;

(c) wait for the behaviour to subside;

(d) if treatment needs to be done and the risk of spitting is high, go and get a face mask/spit shield before proceeding with the treatment;

(e) in an extreme or emergency situation, the staff may persist with the treatment irrespective of the spit and try to position themselves so as not to lean over or near the patient's face.

148 NM1 gave oral evidence. She agreed she did not like Dr A. Dr A had complained in March 2013 that he had been bullied by NM1. NM1 said she "would be very disappointed if Dr [A] returned to [the Hospital's] emergency department." NM1 felt Dr A, "doesn't have respect for nursing staff."

Evidence of Clinical Superintendent

149 The Clinical Superintendent for the Hospital gave evidence for the respondent. The Clinical Superintendent was also the Medical Oncologist and a registered medical practitioner. She had been Clinical Superintendent since 2011. The role entails oversight of the medical registrars within the Hospital. It involves oversight of rostering and workforce issues, as well as training and education.

150 There is little to be derived from the Clinical Superintendent's evidence. The Clinical Superintendent deposed that Dr C came to see her after the pillow incident. She stated:

We did talk about Dr [A]'s use of the pillow but I can't recall the details other than that it had been used over the patient's face amid Dr [A]'s efforts to restrain him. I remember I did say words to the effect of:

You need to ensure that an IIMS report is done. This is the most appropriate channel to ensure that the incident is followed-up.

151 In cross-examination the Clinical Superintendent agreed that the views she expressed in her affidavit were based solely on what she was told by Dr C. The Clinical Superintendent did not speak to Dr A and, in fact, had never met him.

Evidence of Director of Operations

152 The Hospital's Director of Operations gave evidence for the respondent. The Director prepared an advice to the Chief Executive of the Health District regarding an allegation of unprofessional conduct by Dr A. The Director deposed that he made the recommendation to suspend Dr A because "the alleged conduct was highly serious and, if substantiated, was an assault of a patient." The Director said it was also as a "severe breach of the standards of conduct expected of a Medical Practitioner in the [Health District]" and that:

In such circumstances, suspension was the most appropriate risk management measure to take whilst the allegations were investigated. I rejected the other option of "constant supervision" as proposed in the risk assessment. I was not convinced that such a high level of supervision could be guaranteed in an Emergency Department environment. I also considered that it would be an unreasonable burden on the resources of Emergency Department given the high level of patient contact in Dr [A's] role.

153 The Director was not a medical practitioner. In cross-examination he agreed he overruled a risk assessment of the head of emergency medicine that did not recommend suspension of Dr A. The Director also agreed that there was no evidence of any allegation in the past that Dr A ever intended to harm a patient, or that Dr A had been negligent, or that Dr A had assaulted a patient in his 23 years as a medical practitioner.

Consideration

Standard of proof

154 The applicant seeks an order under s 89(7) of the IR Act that the respondent not dismiss him in accordance with a threat by the respondent to do so. The threat was contained in a letter to Dr A's solicitors dated 6 November 2013, in that the Health District said it intended to terminate Dr A's employment as of 14 November 2013. As explained earlier in these reasons, the threat has not yet been carried out and the implementation of any decision to terminate will depend on the outcome of these proceedings.

155 This matter has proceeded on the basis that Dr A bears the onus of establishing that the threatened dismissal is harsh, unreasonable or unjust. This is the tripartite test to be applied in respect of a dismissal, but according to the parties, as a dismissal is defined in s 83(5) of the IR Act to include the threat of dismissal, the tripartite test applies. The issue of whether the tripartite test applies to a threatened dismissal raises some interesting questions. For example, in considering the question of harshness does the tribunal examine the impact of dismissal on the employee if the threat were to be carried out or does the tribunal examine whether the threat itself is harsh? If the Commission finds the threatened dismissal is not harsh, unreasonable or unjust and the employee is dismissed, is the employee estopped from seeking relief under s 84 for unfair dismissal?

156 Given the parties have proceeded on the basis that the tribunal should approach the issue of a threatened dismissal in the same way it would approach an actual dismissal, I will leave any questions about the application of the tripartite test to a threatened dismissal to another time.

157 Whilst the applicant bears the onus of proving the threatened dismissal is "unfair", the respondent bears the onus of proving its allegations of misconduct on the part of the applicant: Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1997) 72 IR 257 at 261 and Perfection Dairies Pty Ltd v Finn [2006] NSWIRComm 137; (2006) 151 IR 197 at [73].

158 It seemed to be accepted by the parties that the standard of proof was the balance of probabilities according to the Briginshaw standard. It is well to remind oneself what that standard is. Dixon J framed it in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 76 years ago. His Honour stated at 362:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

159 Earlier, at 361, Dixon J said:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

160 In a similar vein, Rich J in Briginshaw at 350 stated:

In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.

161 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170, after quoting Briginshaw, the joint judgment said at 17:

[T]he strength of the evidence necessary to establish the fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found. Statements to that effect ... should be understood as ... reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach to the court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

162 In Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 the Full Bench, after referring to Briginshaw, stated at [12]-[15]:

[12] The Briginshaw v Briginshaw principle is now embodied in s 140 of the Evidence Act 1995. That section provides:

140. Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

[13] The principle in Briginshaw v Briginshaw has been applied by the Commission in unfair dismissal cases when considering allegations against an employee of serious misconduct involving allegations of criminal activity. For example, in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464, the Full Bench said:

The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.

[14] Nevertheless, the Full Bench made it clear that:

... the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement.

See also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 304 and Bigg v NSW Police Service (1998) 80 IR 434 at 456.

[15] Ordinarily, the principle in Briginshaw v Briginshaw is applicable to findings of criminal conduct or fraud (see, for example, Neat Holdings), however, the statements of principle may be applied to allegations of a broader nature. In all matters, it is necessary for a tribunal to consider the nature and seriousness of the allegation made before finding it proved at the requisite level. In this case, the finding made by the Commissioner was that "the termination of the [respondent's] employment was not unconnected with the raising of complaints by him about the alleged work-related harassment".

163 Thus, according to s 140 of the Evidence Act 1995 the relevant standard to be satisfied in a civil proceeding, which includes the present proceedings (although the Commission is not bound by the rules of evidence), is on the balance of probabilities. However, that standard must be satisfied to a degree that is appropriate to the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding". Hence in New South Wales Bar Association v Livesey [1982] 2 NSWLR 231, it was considered that the Briginshaw standard was the appropriate standard to apply in relation to allegations of serious misconduct of a barrister.

164 In the present case the allegations against the applicant are tantamount to an allegation of assault on a patient. That is a serious allegation to be made against a medical practitioner. In my opinion, if the allegation were made out it would have the most serious consequences for the applicant's medical career, potentially putting an effective end to any opportunity for the applicant to pursue a career in emergency medicine.

The applicant's credit as a witness

165 The central issue requiring determination in these proceedings is whether Dr A forcefully applied a pillow to the face of the Patient in response to the Patient spitting at Dr A. If there is a finding in the affirmative in that respect, I consider there would be no basis upon which I would make an order under s 89(7) of the IR Act preventing the respondent from implementing its decision to terminate Dr A's employment. It seems to me, however, if there is a finding about that issue in the negative, an order under s 89(7) is appropriate and the other reasons relied upon by the respondent's Chief Executive on 6 November 2013 to justify the decision to terminate Dr A's employment, must fall away.

166 That is to say, the assertions in the Chief Executive's 6 November 2013 letter that the applicant: failed to acknowledge his conduct; lacked remorse; attempted to down play the gravity of his conduct; failed to acknowledge the Patient may have been psychologically affected; believed his response was an appropriate one to being spat on; failed to recognise the impact of his conduct on his colleagues; and that there was a risk of the applicant repeating his conduct, would have no bearing on the question of whether the respondent was justified in deciding to terminate the applicant's employment if it is found that Allegation One is not made out. The relevance of these matters hinges on whether Allegation One is proven.

167 However, in addition to the reasons set out in the Chief Executive's letter of 6 November 2013 justifying the decision to terminate the applicant's employment, the respondent now wishes to supplement those reasons. The supplementary reason relates to matters about which the respondent said it acquired knowledge after the decision was made to terminate, which allegedly shows that the applicant was dishonest by lying and fabricating differing versions about material events that occurred on 25 May 2013. The respondent referred to Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 and Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; (1990) 99 ALR 45 at [75] to support its contention that it was entitled to rely on after-acquired knowledge. The respondent also appeared to submit that, in any event, in determining whether a threatened dismissal is harsh, unreasonable or unjust the Commission is required to take into account all of the evidence that is available to the Commission: Vujica v TNT Australia Pty Ltd [2014] FWC 4790; Michael King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019.

168 The matters about which it was submitted the respondent said it acquired knowledge after the decision was made to terminate, which it submitted showed the applicant engaged in "fabrications and misrepresentations as to critical facts, recent invention, exaggeration and ex post facto rationalisations" and which undermined his credit as a witness, were as follows:

(1) the applicant contended he only used the pillow once whereas the weight of the evidence was that the applicant forcefully applied the pillow twice to the Patient's face: once prior to the Hudson mask being used and again when the Hudson mask was on the Patient's face;

(2) the applicant stated he administered the Haloperidol after the Hudson mask was applied in circumstances where he had never made any such assertion before, and where that version was inconsistent with all of the other contemporaneous, documentary and oral evidence;

(3) the applicant fabricated and misrepresented the situation in relation to the purpose of the injection of the Haloperidol. He variously represented the purpose of administering Haloperidol was for sedation, then to manage delirium then for transport to RESUS;

(4) the applicant failed to make concessions even where he was confronted with plain contradictions such as asserting that "crouching down" meant "leaning over";

(5) the applicant gave inconsistent evidence about the angle at which he held the pillow;

(6) the applicant's assertion of parallax error of three witnesses looking from three different angles was not credible;

(7) the applicant did not wait until the Haloperidol took effect, which reinforced Dr C's contention that Dr A was impatient;

(8) the applicant was the only person who asserted that the Hudson mask was not properly applied. Further, Dr A's evidence was that the Hudson mask was "still folded" and sitting on the patient's cheek;

(9) the applicant exaggerated the amount of spit, describing it as a "stream" and a "waterfall";

(10) another example of Dr A's exaggeration and fabrication of evidence, was his assertion that when he returned from washing his face, he engaged in two to three seconds of "thoughtful consideration";

(11) the video prepared by the applicant misrepresented the evidence and was inconsistent with other evidence;

(12) the hand drawn diagrams of the applicant indicating where he and everyone else were standing at the time when he utilised the pillow were misrepresentative;

(13) the applicant, through the course of giving his version of events, exaggerated the conduct and behaviour of the Patient in order to support his story that he applied the pillow out of concern for the patient's safety and that of the staff.

169 These matters may all be relevant to whether the applicant gave credible evidence, but it does not seem to me they fall into the category of after-acquired knowledge. The notion of after-acquired knowledge derives from line of authority that an employer may justify a dismissal at common law by reference to facts not known at the time of dismissal: Lane v Arrowcrest Group Pty Ltd; Byrne v Australian Airlines Ltd at 430 per Brennan CJ, Deane and Dawson JJ, and 467 per McHugh and Gummow JJ; and Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 103 IR 160; (2000) 75 ALJR 312 at [27]-[29] per Gleeson CJ, Gaudron and Gummow JJ and at [51] per Kirby J.

170 Except perhaps for two matters, the respondent was aware of all of the facts underpinning the matters in [168] above at the time it made its decision to dismiss the applicant. For example, in relation to the use of the pillow, the respondent always knew the applicant claimed he only used it once. In relation to the Hudson mask the respondent always knew the applicant claimed it was not properly fitted to the Patient's face. In relation to the video, the respondent considered its contents in making a decision to dismiss the applicant. A proposition that the facts underpinning the matters in [168] above constitute after-acquired knowledge cannot be sustained.

171 The exceptions appear to be the timing of the Haloperidol injection and the purpose of that injection. Whether those two matters constitute after-acquired knowledge or are to be regarded as undermining the applicant's credibility does not appear to me to make much difference. I will deal with these two matters later in this decision.

172 The respondent submitted that, in any event, in undertaking the task of determining whether a threatened dismissal is harsh, unreasonable or unjust the Commission is required to take into account all of the evidence that was available to the Commission. It was submitted that the Commission was not limited only to the evidence that was available to the original decision maker. Reliance for this proposition was placed on a decision of Sams DP in the Fair Work Commission in Vujica v TNT Australia Pty Ltd. His Honour, in turn, relied on a decision of the Full Bench of the Australian Industrial Relations Commission in Michael King v Freshmore (Vic) Pty Ltd. In that case the Full Bench stated at [24]-[29]:

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

[25] We now turn to deal with each of the particular points advanced by the appellant.

No Valid Reason

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

[27] In the decision subject to appeal his Honour dealt with these issues in the following terms:

"I accept the submissions of Mr McDonald that the kibble incidents were not adequately investigated by Gilson and that the applicant was not given adequate opportunity to respond to the allegations made to him in relation to these incidents. I find that the respondent would not have been entitled to rely on those incidents to take the serious step of terminating the applicant's employment.

I do, however, find that Gilson was reasonably entitled to reach conclusions he did as to the 18 December threat by the applicant to Guthrie. That matter was reasonably investigated. The allegations against the applicant were clearly put to him. He was afforded the opportunity to be represented by a shop steward during the course of the relevant meetings. In the circumstances of an encounter between two persons, unwitnessed by others, Gilson was entitled to have regard to the offer of resignation by Guthrie in assessing the conflicting accounts of the incident. He was reasonably entitled to reach conclusion he did - that is, that the applicant had made the threat to Guthrie as alleged. Gilson was reasonably entitled to terminate the employment of the applicant on the basis of this threat. Whilst Mr McDonald sought to characterise threat as a `smart alec comment', such a threat has no place in the workplace. In my view Gilson was reasonably entitled to terminate the employment of the applicant having been reasonably satisfied that such a threat was made by him. I find that there was a valid reason for the termination and the applicant was afforded procedural fairness in the investigation of the issue which constitutes that reason."

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment.

173 The point made in King was that it was a wrong approach under s 170CG(3) of the Workplace Relations Act 1996 (Cth) to answer the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. The correct approach was for the Commission to determine for itself, and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

174 In other words, all that King decided was that it was not open to the Commission to decide the question of whether misconduct occurred on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. Rather, the Commission had to decide for itself on the evidence. King went no further than that. It did not decide one way or the other whether the Commission was limited only to the evidence that was available to the original decision maker.

175 The approach I propose to take is to examine each of the allegations regarding the applicant's credit, make findings in that respect and then assess the evidence in respect of the central question of whether the applicant forcefully applied the pillow to the Patient's face having regard, inter alia, to my findings regarding credit.

176 Before examining the evidence regarding the allegations relevant to the credit issue, I should observe that senior counsel for the applicant submitted the respondent:

[M]ade very serious assertions that the Applicant has lied (14 references), fabricated his evidence (6 references), misrepresented the truth (7 references), mislead (sic) the Commission (2 references), been dishonest (7 references), etc. These are serious accusations, which are tantamount to allegations of perjury. Given the seriousness of the allegations that are now put, the rules of natural justice required that it be squarely put to the Applicant that his evidence was a lie, that he was being dishonest, that he was misleading the Commission, etc. None of these allegations were squarely put to the Applicant. There should be consequences that flow from the making of such serious submissions, especially in circumstances where the Respondent is subject to model litigant principles. The Respondent should be the subject of censure for the manner in which it has conducted itself.

177 The applicant's criticism does not appear to be based on the rule in Browne v Dunn (1893) 6 R 67. The rule states that where a party intends to lead evidence that will contradict or challenge the evidence of an opponent's witness, it must put that evidence to the witness in cross-examination. It has been said that the rule is essentially a rule of fairness - that a witness must not be discredited without having had a chance to comment on or counter the discrediting information. It also gives the other party notice that its witness' evidence will be contested and further corroboration may be required: Australian Law Reform Commission "Examination and Cross Examination of Witnesses", ALRC Report 102.

178 Rather, the applicant's complaint was that as a matter of fairness, so that everyone, including the witness, understood the respondent's position, the respondent should have put to the applicant in cross-examination that the applicant was being untruthful or misleading. I agree. Allegations of lying and the like should not be reserved for closing submissions. As a matter of fairness, such allegations should be put squarely to the witness if there is evidence to support such allegations. Under no circumstances may such accusations be put to a witness if there is no evidentiary support for them. It is not necessary to call the witness a "liar "- such epithets may not be helpful. But the same point can be made using less emotive language.

179 Because it was not put to the applicant in cross-examination that he was being untruthful or misleading means that I must take particular care and caution in considering the respondent's contentions in this regard. I note what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319:

Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

180 The appellant was attacked for his demeanour in the witness box. It was submitted Dr A's tone of voice and demeanour in the witness box was "arrogant and patronising"; that Dr A said, "over and again how others were wrong and he was right." That is the extent of the submission. No examples were identified.

181 I did not find the applicant "arrogant and patronising." He was articulate and defended his position confidently and forthrightly, but one would expect that of a man in his position with his level of training, education and experience. One cannot lose sight of the fact that the applicant's career and livelihood was on the line and he was entitled to offer a robust defence of propositions that were put to him with which he did not agree, as senior counsel for the respondent was entitled to, and did, pursue a robust but civil cross-examination. I did not find it necessary to caution the applicant about his attitude in the witness box.

Respondent's contention regarding Allegation Two

182 There were, as I have already explained, two allegations made against the applicant that involved the use of the pillow. Allegation One was based on information provided by other clinicians present. That information suggested that Dr A woke the Patient, the Patient became angry and aggressive, the Patient was held down, the drug Haloperidol was administered, the Patient spat in Dr A's face and Dr A then allegedly applied the pillow forcefully to the Patient's face. Allegation One was sustained.

183 Allegation Two was based on information that after Dr A returned from washing his face, he saw that, in the meantime, a Hudson mask had been applied to the Patient's face. Nevertheless, the allegation was that Dr A again applied the pillow to the Patient's face, but this time over the Hudson mask. Whilst this was occurring the limb restraints were applied to the Patient. This allegation was not sustained because the Chief Executive considered the evidence was insufficient. The Chief Executive's opinion in this regard seems to have been guided by the Investigators' view that:

The possibility that the second alleged incident occurred when Dr B and RN2 were not present cannot be discounted, particularly as Dr C is considered to be a credible witness who has no known reason to prevaricate her evidence. Although the investigators prefer the evidence of Dr C they are of the view that given the lack of corroborative evidence, and in contemplation of the Briginshaw Principle, the allegation should not be sustained due to insufficient evidence.

184 Dr A's evidence was that he only used the pillow once as a spit shield, but in doing so did not apply it to the Patient's face. Dr A said that he used the pillow as a spit shield after returning from washing his face. He said he saw the Hudson mask, but that it was not an effective barrier because it was too small, still folded and, therefore, not applied properly such that it would prevent the Patient spitting on him and other staff present. Dr A stated:

Due to the risk to my safety and that of the other staff, in the spur of the moment, I picked up a pillow that was next to Patient 1 and held it up approximately 10cm from Patient 1's face as a shield to block the spit stream which continued. The total time that I held the pillow as a shield was no more than 5 - 10 seconds. It was a last resort improvisation designed to be in the best interests of the patient and staff in a difficult situation.

185 The respondent now contends that Dr A applied the pillow in the circumstances supporting Allegation One (completely denied by Dr A) and that, despite the finding that Allegation Two was not sustained and, therefore, did not constitute a basis for deciding to dismiss Dr A, the Commission should find the Allegation is made out.

186 There are two aspects to Allegation Two. Firstly, whether after the Hudson mask had been applied by RN2 and after the applicant returned from washing his face, the applicant picked up the pillow and used it in some way in relation to the Patient; and secondly, if so, whether the pillow was forcefully applied to the Patient's face.

187 As to the first aspect, there appears to be unanimity amongst all five clinicians present that after he returned from washing his face and after the Hudson mask had been applied by RN2, Dr A picked up the pillow and used it in some way in relation to the Patient. Dr A said he used the pillow as a spit shield whilst holding it away from the Patient's face. Other evidence was that Dr A forcefully applied the pillow to the Patient's face over the Hudson mask.

188 My conclusion is that, in relation to the first aspect of Allegation Two, after the Hudson mask had been applied and the applicant returned from washing his face, the applicant picked up the pillow and used it in some way in relation to the Patient. As to the second aspect of Allegation Two - that the pillow was applied forcefully to the Patient's face over the Hudson mask - that cannot be sustained to the level of proof required by the Briginshaw standard. My reasons for arriving at that conclusion are as follows:

(1) The only evidence that the pillow was applied forcefully to the Patient's face over the Hudson mask was that of Dr C. Dr B said that whilst she saw the pillow used a second time it was not pressed into the Patient's face, that it was "used as a shield and did not touch the patient's face." Dr B also stated, "On the second occasion, the pillow was used as a shield but at that time I didn't specifically see who it was used by." RN1 noted that the pillow was "near the patient's face again" and "the pillow seemed to be just lying over the patient's face." RN2 said when she returned from obtaining the restraints, "Dr [A] had replaced the pillow over the patient's face though at a distance" and that "When I returned, I saw Dr [A] holding the pillow directly above the patient's head. The patient was moving around trying to look from under the pillow."

(2) Whilst I regarded Dr C as an honest, credible witness, I note that she was very upset, shocked and distressed at what she said was a "quite a horrible and disturbing thing to see" when she alleged Dr A forcefully applied the pillow on the first occasion. Dr C remained in a distressed state for some hours after the incident. Further, in her own words she was "not really dealing with the situation very well". I cannot be satisfied, in the absence of corroborative evidence, that in her shocked and distressed state Dr C could be relied upon to give an accurate account of what occurred, especially given the seriousness of Allegation Two and the implications for Dr A if the Allegation was made out.

(3) If the Hudson mask had been properly applied to the face of the Patient, as Dr C and others claimed, it is difficult to imagine why Dr A would find it necessary to forcefully apply the pillow over the Patient's face to prevent the Patient from spitting. The Hudson mask would have achieved that objective. If, however, the Hudson mask was not properly applied, perhaps because it became dislodged by the violent movements of the Patient, the pillow may have been used as a spit shield held away from the Patient's face. That would be consistent with Dr A's evidence.

(4) One reason Dr A may have applied the pillow forcefully is out of anger at having been spat on. However, there was no evidence from the other clinicians present that Dr A applied the pillow out of anger.

189 The respondent submitted that the most important feature about Dr A's use of the pillow on the second occasion was not whether it was applied with force, but the fact that it was used at all. It was submitted that by this time, Dr A had the opportunity, whilst washing his face and undertaking his thoughtful consideration, to make a considered response about how to cope with further possible incidents of spitting. The use of the pillow on this second occasion as a spit shield was highly inappropriate on any version of events.

190 I agree to some extent. I agree with the respondent that Dr A made a series of poor decisions about his treatment of the Patient that led to a situation where he said he had to resort to using a pillow as a spit shield. There was a lack of communication, an absence of appropriate planning and no risk assessment.

191 Dr A knew that the patient was suffering from delirium. He knew that the Patient had been aggressive upon being woken up. On any objective analysis it was a poor decision to administer the Haloperidol and attempt the scan in the EMU with a patient that was combative and had punched Dr C and attempted to punch others. Alternatively, as the respondent submitted, given that a violent reaction from the Patient was plainly foreseeable, Dr A failed to make any real risk assessment as to the PPE that might be needed, nor as to the directions and consultation that were required with the other clinicians on how to manage the Patient.

192 This led to a situation where, having woken the Patient, Dr A was confronted with a situation that five clinicians were unable, in the short term, to adequately deal with: a patient who was "violently thrashing around" and spitting. The Patient had to be physically restrained by the clinicians. Not having made any risk assessment or consulted with the other clinicians to a proper degree, Dr A was placed in a position of not having any adequate PPE or restraints immediately available and had to resort to using the pillow as the only device at hand to use as a spit shield. It was not as if spitting was not foreseeable. Spitting occurs fairly regularly in EDs according to NM1's evidence.

193 However, this episode of poor decision-making, in circumstances where there was no harm to the Patient, does not justify a decision to dismiss. The respondent itself must have recognised this because it had all the evidence it needed to show that a pillow was used as a spit shield. Indeed, Dr A agreed that was so, but the respondent did not rely on the use of the pillow as a spit shield to justify a decision to dismiss.

194 There is no basis to draw any adverse inference in relation to Dr A's credit in respect of Allegation Two.

Timing of Haloperidol injection

195 The respondent submitted that whilst Dr A was at pains to describe each and every other step during the course of his "treatment" of the Patient on 25 May 2013 in his affidavits, at no stage did Dr A refer to the moment when RN2 injected the Patient with Haloperidol. In cross-examination, Dr A said he had omitted it on legal advice. What that legal advice may have been was not explored, perhaps for understandable reasons, but the fact that Dr A did not refer to the timing of the Haloperidol injection makes one wonder why not.

196 The respondent submitted that in giving oral evidence Dr A, for the first time, asserted that the injection of Haloperidol occurred after he had returned from washing his face and after the Hudson mask had been applied.

197 It is correct that the first time in his evidence Dr A addressed the question of the timing of the Haloperidol injection was in his oral evidence. He did assert that the injection occurred after he had returned from washing his face and after the Hudson mask had been applied. Dr A's evidence was that after two to three seconds of thoughtful consideration at the end of the bed after his return from washing his face:

(1) he asked RN2 to get 5 mg Haloperidol;

(2) RN2 left to get the Haloperidol and was gone for about 10-20 seconds;

(3) during that time the Patient continued to emit a steady stream of spit;

(4) when RN2 returned, the Patient was turned on to his side, RN2 moved to the right side of the Patient and injected him whilst he was being held by the others and then the Patient was rolled back. The flailing and shouting and spitting continued and Dr A had the idea that if he could just get two seconds of probe to skin contact time, he could work out the most appropriate disposition for the Patient. But it became clear that was not going to happen in EMU, and the spit continued. Dr A held up the pillow "as a quick transient measure", handed it to Dr C, and the restraints were obtained.

198 Subsequently in his cross-examination, Dr A's evidence was relevantly that:

(1) as part of his thoughtful observation of two to three seconds whilst approaching the Patient's bed, Dr A determined that the Hudson mask was not going to be effective and that a non breather mask from RESUS would also not be appropriate;

(2) following his observation, he walked up behind Dr B and took his position;

(3) whilst the Haloperidol was being obtained by RN2 (which took 20-30 seconds), the Hudson mask was left on the Patient's face. Although an attempt was made to hold the Patient down the Patient was thrashing about whilst Dr A was observing him;

(4) when RN2 returned, she gave the Patient the Haloperidol;

(5) the Patient continued to violently thrash around the bed;

(6) the decision was made by Dr A to use the pillow as a spit shield.

199 The respondent submitted that Dr A's version of when the Haloperidol was injected was at odds with other evidence, which was that the Haloperidol was injected prior to the Patient spitting at Dr A and prior to the placement of the Hudson mask. The other evidence referred to by the respondent was as follows:

(1) clinical notes by nurses regarding history of Patient's treatment;

(2) clinical notes of Dr A;

(3) clinical notes of Dr C;

(4) AIMS Incident Detail Report of Dr C;

(5) AIMS Incident Detail Report of RN2;

(6) Interview record of RN1;

(7) Interview record of RN2;

(8) Statement of Dr B provided to investigator;

(9) Interview record of Dr C;

(10) affidavit of RN1;

(11) affidavit of RN2;

(12) affidavit of Dr B;

(13) affidavit of Dr C.

200 It was further submitted for the respondent that Dr A's oral evidence, that the injection was administered after the Hudson mask was applied, was inconsistent with:

(1) the response he provided in his internal interview on 6 June 2013;

(2) the correspondence from his solicitors dated 3 July 2013;

(3) Dr A's evidence that the search for the drug chart occurred when he arrived at the Patient's bed;

(4) Dr A's evidence that prior to administration of the Haloperidol, the Patient was sleeping;

(5) Dr A's evidence that he requested Dr C to write up 5mg of intramuscular Haloperidol; and

(6) that Dr A made this request at the time he was busy getting the ultrasound machine ready.

201 The respondent referred to the fact that in his interview on 6 June 2013, Dr A agreed with the investigator that he had awoken the Patient, the Patient had hit Dr A and become violent and the interview continued as follows:

Q. And then you described Dr [C] was at the patient's right arm and Dr [B] was at the patient's left foot and a nurse at the right foot and then by inference, there is another nurse there.

A. The nurse was actually administering the haloperidol. She was sort of free to move as it were because Dr [B] was holding the leg.

202 The respondent's submission regarding the alleged inconsistencies in Dr A's evidence in relation to the timing of the Haloperidol injection was that the Commission ought find that either Dr A lied to the internal investigator or fabricated his evidence in these proceedings on this issue. Taken on its own or in combination with the other examples of fabricated and inconsistent evidence, it was submitted the Commission ought rely on this matter in making a finding that Dr A has been dishonest.

203 There is a clear inconsistency between the evidence of Dr A and the other clinicians who were present regarding the timing of the Haloperidol injection. There is also an inconsistency between what Dr A told the investigator and his evidence in these proceedings.

204 The respondent, however, did not put to the applicant in cross-examination that he was being dishonest or misleading. Moreover, the respondent did not suggest a motive for Dr A putting a different version as to the timing of the Haloperidol injection to that of the other clinicians. In other words, what advantage would Dr A gain from putting a different version such that he resorted to being untruthful? There may have been one, but the respondent did not say what it was. Accordingly, the fact that Dr A's evidence about the timing of the injection was inconsistent with that of other clinicians and with what he told the investigator is not a sufficient basis on which to find the applicant was untruthful.

205 The weight of the evidence supports a conclusion that the Haloperidol was administered at a time consistent with the evidence of the other clinicians. RN2's evidence was as follows:

Some time later, at approximately 23:00 hours, Dr [A] came in to the EMU. He said:

"Can you get the IMI Haloperidol for [the Patient]?"

It is standard practice when the patient is to be administered IMI Haloperidol medication for the patient to be physically restrained. This practice is necessary to ensure staff safety from sharps when dealing with an acutely confused patient.

Another nurse, [RN1] came to assist with the restraining of the patient. I don't know who had asked the other staff but in addition to [RN1] and me, there was Dr [B], Dr [C] and Dr [A].

Dr [C] was on the patient's right, restraining his right arm. Dr [A] was restraining the patient's left arm.

[RN1] and Dr [B] were restraining the patient's legs.

Dr [A] told me to administer the Haloperidol.

The patient was lying on his left side and whilst he was restrained in that position, I administered the IMI injection into the patient's right buttock.

I then moved to the end of the bed.

The patient was then moved so that he was lying on his back. He was becoming more confused and agitated.

Before waiting for the sedative to take effect, Dr [A] commenced the bladder scan straight away.

As he did so, the patient, turned his head around and spat directly into Dr [A's] face....

206 Dr C's evidence was that following her discussion with Dr A regarding the appropriate medication Dr A instructed her to chart the Haloperidol, which she did. Dr C then deposed:

At this point the patient was still asleep and peaceful. The nurses went to draw up the haloperidol. When they arrived back at the patient's bedside Dr [A], was waking up the patient to administer the medication rather than administering the medication with the patient settled.

I remember he then said something to the patient, but I do not recall what he said, but I remember the patient started throwing punches and becoming physically aggressive.

Dr [A] did not call any security to assist in holding down the patient, instead he got me, the resident and the two nurses to assist holding the patient down. Then one of the nurses, I do not remember which one, gave the drug to the patient which was given with a needle.

The patient seemed very angry at being given the needle and began throwing punches and then spat in Dr [A's] face. Dr [A] was visibly angry at this. Dr [A's] whole face changed, I could tell from his expression that he was angry at what had just occurred. Dr [A] then reached behind the patient's head and grabbed the patient's pillow and held it down hard on the patient's face. I was completely shocked. At that point I was at a complete loss at what to do.

207 Dr B's affidavit had attached to it the Statement she provided to the internal investigation. In the Statement Dr B said:

I later returned to check with the nurses on [Patient's] progress/concerns and to see if [Dr C] had been to see [the Patient].

At this point [Dr C] and Dr [A] were in the EMU.

Dr [A] stated that the patient was to be sedated as he was going to scan his bladder with bedside ultrasound ? retention and ...

He asked me to stay to help and I agreed.

It had been decided prior to my arrival to give [the Patient] Haloperidol IM.

RN2 went to prepare the drug while we positioned ourselves.

...

RN2 passed the haloperidol to the other nurse for administration. I positioned the patient's knees moving them towards me to allow the injection to be administered to [the Patient's right buttock.

Following this the patient became both verbally and physically aggressive and was attempting to hit staff.

Dr [A] asked me to hold the patient's left arm as he prepared the ultrasound.

He turned his back to the patient turning on the USS and as he turned back towards the patient the patient spat directly into Dr [A's] face.

Dr [A] took the pillow from behind the patient's head as [the Patient] was leaning forward trying to get up. Dr [A] using his left hand pushed the patient into the bed with the pillow covering the patient's face. He held the pillow on his face for approximately 5-10 sec and stated during this time that it wouldn't impair his ventilation.

208 RN1 deposed as follows:

I was in the Emergency Medical Unit (EMU) with another patient. After I had left that patient, I offered to assist with the restraint of a patient in order to give him an injection of haloperidol.

This took place in Bed 8 in the EMU.

There was male doctor on the patient's left hand side, near the patient's head (I now know that this was Dr [A]). There was a female doctor on the patient's right hand side, holding his arm (I now know that was Dr [C]] and another female doctor between me and Dr [C]. I held the patient's right leg. I didn't know the doctors or their names then. However, [RN2], a nurse that I know in the EMU, was there and she administered an injection of haloperidol whilst we were holding the patient.

... Dr [A] says that the patient spat a large amount of saliva into his mouth eyes and right ear. I did not see that.

However, I remember looking up and seeing a pillow horizontal across the patient's face. Dr [A] was holding the pillow over the patient's face. He had a grasping hold across the pillow horizontally.

209 Dr C, Dr B and RN2 said that after they saw the pillow applied the first time, each of them saw Dr A apply the pillow a second time after he had washed his face and after RN2 had applied the Hudson mask. RN1 said:

Dr [A] then left the area.

...

I remember that I saw that [RN2] put an oxygen mask on the patient.

[Dr A] says that the oxygen mask was too small and still folded when it was placed on the patient. That is not my recollection. When I saw the mask, it looked as if it had been put in position by [RN2].

At that point, I remember seeing the pillow sitting half across the patient's face. It wasn't like it was before when Dr A was holding the pillow across the patient's face. When he had the oxygen mask on, you could see the patient's face.

I am a bit fuzzy about how the pillow got there the second time. I think Dr A left it there but I cannot be sure.

210 None of the other clinicians had any reason to be untruthful or to conspire against Dr A. Other than Dr C, none of the clinicians suffered any disadvantage that may have rendered their testimony unreliable. Dr C was clearly traumatised by what she believed she had witnessed. She said she froze and felt helpless to intervene. However, her evidence regarding the timing of the Haloperidol injection is wholly consistent with that of the other clinicians. In any event, even if I were to discount Dr C's evidence, there are three eyewitnesses as to the timing of the injection and their evidence outweighs that of Dr A.

211 That means the Haloperidol was administered shortly after the Patient was woken up for the purpose of performing the bladder scan, prior to the Patient spitting at Dr A and prior to the placement of the Hudson mask.

212 Accordingly, I find Dr A's evidence about the timing of the Haloperidol injection to be unreliable and it has caused me to take a more sceptical approach to other evidence of the applicant than what might otherwise be the case.

Purpose of the Haloperidol injection

213 There was a dispute between Dr A and Dr C about the use of Haloperidol. Dr C said she asked Dr A what sedative he would use and she suggested Midazolam. The applicant said he told Dr C that he would not use Midazolam because of the associated risk of respiratory compromise in the EMU (as it required respiratory equipment to monitor the Patient) and that Haloperidol would be a more appropriate drug for the Patient as no monitoring was required. The applicant said he explained to Dr C that Midazolam could only be safely administered in the RESUS area with full monitoring, but that there were no beds currently available in that area.

214 Dr C said that Dr A told her to write up 5mg of intramuscular Haloperidol to which she replied that she would prefer that the Patient be taken to the RESUS area and sedated with a short acting sedative such as Midazolam. Dr C said she also told Dr A that she did not think that Haloperidol was the right drug for the Patient as it would exacerbate his delirium and that the drug was not primarily a sedative and may fail to sedate the Patient adequately for the procedures. According to Dr C, Dr A then told her that she was wrong and that Haloperidol had a maximum duration of effect for 5 hours and because it was night time the Patient would sleep it off and thus directed her to write up Haloperidol.

215 Dr C said that she told Dr A that she was not comfortable using Haloperidol as sedation and asked again whether Midazolam could be administered with appropriate observations. Dr A was then alleged to have told Dr C that the Patient was a "dry old man" and Midazolam could cause immediate threat to his airway so he was not prepared to give Midazolam.

216 Dr C said that she felt that she was being criticised repeatedly and rudely by Dr A, she felt intimidated by him and his demeanour and that for these reasons she charted the Haloperidol even though she did not feel comfortable doing so.

217 The respondent submitted Dr A fabricated and misrepresented the situation in relation to the purpose of the injection of the Haloperidol.

218 Senior counsel for the respondent submitted it was evident from all of the contemporaneous documentation, investigation information and the respondent's affidavits that the purpose of the injection of Haloperidol was to sedate the Patient for the purposes of undertaking a bladder scan.

219 It was submitted that at no time during the course of the internal investigation did Dr A contradict the assertion that the purpose of the Haloperidol injection was for sedation. In his response to the Health Care Complaints Commission, the respondent observed Dr A positively asserted that the Haloperidol was the more appropriate "sedation medication".

220 The respondent submitted that the first time Dr A contended the Haloperidol was not for sedation was in his third affidavit where he asserted:

I refer to paragraphs 31-41 of my Affidavit and note that the purpose of administering Haloperidol to the Patient was not procedural sedation to perform the FAST Scan, but to manage delirium.

221 However, as the respondent correctly observed, nowhere in paragraphs 31-41 of Dr A's first affidavit was there any reference to the Patient being given Haloperidol let alone an explanation for its use. I am not sure what the purpose was of Dr A's reference to paragraphs 31-41 other than to provide some context for the statement in the applicant's third affidavit, which was in response to a statement in NM1's affidavit that the sedative effect of Haloperidol takes about 15-20 minutes.

222 Dr A also said in his oral evidence that the injection that was not "a procedural sedation". The following exchange occurred in cross-examination:

Q. Well I'm going to put a version of events to you, Dr A, as I'm required to do so that you can agree or disagree with me. But the version of events that I want to put to you is that you had the conversation with Dr C where you disagreed about the use of the Midazolam and you directed the use of the Haloperidol; that's correct, isn't it?

A. Not correct, no. I said we might use the Haloperidol.

Q. "We might use the Haloperidol"?

A. Yep.

Q. Just to be clear, on your version of events, you're now saying that the Haloperidol was never intended by you to be used as a sedation to do the bladder scan?

A. Correct. It's not a procedural sedation drug under any circumstances. It's never used for that.

Q. All the conversation you had with Dr C were about sedation for the bladder scan?

A. According to Dr C, but not what I was talking about. I was being asked to manage a big picture situation. Dr C seemed to be focused on the bladder scan, I was focused on controlling a potentially violent patient in the EMU with regards to the next disposition. Haloperidol is to be used for delirium, it's not a procedural sedation drug.

223 However, the respondent submitted, it was not until Dr A was cross-examined that he asserted that the purpose of the injection of Haloperidol was just in case it was needed or "in case he gets violent" or for "transport".

224 Senior counsel for the respondent submitted these were recent inventions and simply implausible for the following reasons:

• On his own evidence, Dr A was well aware from his discussions with Dr C that the patient was "agitated, uncooperative and violent". He was also aware that Dr C needed his assistance to sedate the patient in order to carry out a bladder scan. However, on his version, Dr A did not administer the Haloperidol "in case the patient became violent" prior to the scan.

• On waking, the patient (predictably) did become violent but again, Dr A (on his version) did not order the Haloperidol at that time.

• It is therefore inconsistent that the Haloperidol was administered "in case the patient became violent". The time to have done that was before commencing any treatment of the patient or when the patient did exhibit violence;

• In relation to the "transport" explanation, Dr A only decided to transfer the Patient to RESUS after Dr C refused to hold the pillow over the patient's face and when Dr A had determined that it was not safe and effective to proceed with the ultrasound in EMU. However, on Dr A's evidence the injection for Haloperidol had already been given by the time he made that decision. In any event, Dr A did not wait for the Haloperidol to take effect prior to transporting the patient to RESUS. Therefore the purported explanation that the Haloperidol was for "transport" cannot stand.

225 The respondent submitted it was not difficult to determine why Dr A fabricated his version of events:

By re-characterising the Haloperidol injection as being for "transport" purposes, Dr A has sought to avoid the criticism made by the ED Staff Specialist, Dr D, Dr C and RN2 that a procedural sedation should not have been done in the EMU. In addition, Dr A may also have been seeking to avoid the criticism that if it was for sedation, Dr A did not wait for the Haloperidol to take effect.

226 I do have some difficulty with the applicant's evidence regarding the purpose of administering Haloperidol. It was clearly the case that the Patient was "agitated, uncooperative and violent". If the intention was to perform a bladder scan or bladder ultrasound on the Patient in that condition, one wonders why it would be attempted without first adequately sedating the Patient.

227 I note the applicant's evidence that in his conversation with Dr C before the pillow incident occurred he said sedation needed to be done in RESUS where proper monitoring equipment was available, but that no beds were available in RESUS. However, I note a bed was quickly found in RESUS after the pillow incident and where the applicant used Midazolam to sedate the Patient. One wonders why this could not have been done in the first place.

228 Moreover, whilst Haloperidol has a sedating effect, the effect is not achieved for 15-20 minutes. The applicant proceeded to attempt to undertake the ultrasound very shortly after Haloperidol was injected into the Patient and well before it could be said the Patient was sedated.

229 The respondent would have the Commission accept that initially the applicant considered that the purpose of the injection of Haloperidol was to sedate the Patient. However, that the applicant changed his mind when it came to giving his oral evidence to avoid criticism that a procedural sedation should not have been done in the EMU and to avoid the criticism that, if it was for sedation, he did not wait for the Haloperidol to take effect. No matter what the motive, it was submitted the Commission should find Dr A further fabricated evidence and this militated heavily against his integrity and his credit.

230 In defending Dr A's choice of Haloperidol, senior counsel for the applicant submitted it was apparent that Dr C was looking to sedate the patient using Midazolam for the purpose of a procedure - the bladder scan - which Dr C proposed should be carried out in RESUS. On the other hand, it was submitted the applicant was giving consideration to sedation that would also treat the Patient's delirium if it were needed, but did not regard Haloperidol as a procedural sedation. It was Dr A's opinion that Haloperidol would be more effective given the Patient's condition. It was submitted the applicant's evidence in this regard had not been inconsistent and that the fact was that Haloperidol was both a sedative and a treatment for delirium.

231 In seeking to deal with the respondent's reliance on the Haloperidol issue, the applicant called Dr Tarra Shaw, a psychiatrist, as an expert witness. Since 2006 Dr Shaw worked as a Consultation-Liaison (CL) psychiatrist who provides diagnostic and management advice to other clinicians, usually in a general hospital, regarding the patients the clinicians are treating in EDs and Medical and Surgical wards. Dr Shaw indicated that a significant number of patients that CL psychiatrists see in this way have delirium. She said CL psychiatrists become quite specialised in the management of delirium patients. Dr Shaw also indicated she possessed an advanced training certificate in consultation liaison psychiatry with the Royal Australian and New Zealand College of Psychiatrists, which was a two year course specifically looking at medications that are used in medically unwell patients with psychiatric problems such as delirium.

232 The applicant also tendered two reports by Dr Shaw that had been sought by the applicant's solicitors. The solicitors had provided Dr Shaw with copies of the affidavits of Dr B, Dr C and Dr R, Director, Clinical Governance of the Health District and Professor of Public Health at the University of Sydney and Conjoint Professor of Public Health at the University of NSW. The solicitors had also provided Dr Shaw with 41 Assumptions on which she was to base her reports.

233 In the first report Dr Shaw expressed opinions in relation to the following questions put to her:

Question 1: Dr A's decision to prescribe haloperidol rather than midazolam to sedate the patient in the Emergency Medical Unit (EMU).

Question 2: Dr A's overall management of Patient 1.

234 In the supplementary report, Dr Shaw reviewed the affidavits she had been provided with.

235 The respondent challenged the admissibility of Dr Shaw's reports. It was submitted the Assumptions were not assumptions but statements asserting the correctness/appropriateness of what Dr A did and then asking if what Dr A did was appropriate. It was submitted that Dr Shaw's opinions were consequently attended by an apprehension of bias.

236 It was further submitted that Dr Shaw did not have the requisite qualifications to give expert evidence: see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 including that she did not possess specialised knowledge on the selection of drugs: C A Henschke & Co and Anor v Rosemount Estates Pty Ltd [1999] FCA 1561; (1999) 47 IPR 63.

237 The issue of the admissibility of Dr Shaw's evidence was the subject of voir dire proceedings. In those proceedings it was Dr Shaw's evidence that:

• she had worked in 14 or 15 different EDs between 1997 and 2010, initially as a resident doctor and then as a locum doctor and then began work as a registrar and then consultant;

• in her locum jobs Dr Shaw was the most senior medical doctor in the ED functioning as the ED Doctor on call; but once she had begun psychiatry training she was working as a psychiatry registrar;

• she began CL psychiatry in 2003. She would start each day in the ED. In CL psychiatry the job required her to work in the ED and the medical and surgical wards of a general hospital and assist and consult to medical and surgical doctors in those departments and wards;

• patients that had any mental health problems or behavioural disturbances would be subject to psychiatric registrar to review. Dr Shaw would review those patients, work out a management plan, decide on any further investigations that needed doing or history that needed taking, and then communicate back to the ED doctors on how the doctors should proceed in the management of the patients;

• the general classes of medication Dr Shaw was responsible for prescribing were anti-psychotic medication, anti-depressant medication, mood stabilising medications and Benzodiazepine medications;

• Dr Shaw was required to prescribe medication for patients who were delirious;

• in her role as CL psychiatrist Dr Shaw often dealt with the management of delirious patients;

• in general, when a patient was delirious the aim was not to give them any extra medication because anything extra that you give them could either make the delirium worse or make it last longer or bring on a whole new set of symptoms. Most patients that are delirious in hospital tend not to receive medication specifically for their delirium unless they need to; for example, unless they are aggressive or violent or agitated or psychotic or could bring harm to themselves or others, and then the doctors will tend to give medications to try and settle those types of symptoms.

238 In my opinion, Dr Shaw has the necessary specialised knowledge based on training, study and experience to express expert opinion on the two questions she was asked, thereby meeting the requirements of s 79 of the Evidence Act.

239 Dr Shaw explained that the recommended first line treatment in terms of medication to use when a patient is behaviourally disturbed, particularly when their behaviour threatens their own safety or the safety of others, or is interfering with essential medical care, was Haloperidol. In Dr Shaw's assessment, Haloperidol would be the most optimal first line medication to have used for the patient in circumstances where the patient was agitated, uncooperative and violent and the medical practitioners were unable to perform a bladder scan.

240 In Dr Shaw's view, Dr A's decision to use Haloperidol first was in keeping with the current sensible clinical decision making and was in keeping with the practice of doctors experienced in managing delirium and complied with the specific Department of Health clinical guidelines referred to by Dr Shaw. Although Dr Shaw recognised that Midazolam might be a more immediate sedative, the Patient's airway, breathing and circulation would then have needed to be monitored and he was not in a bed where appropriate equipment or staff were available to do that and, therefore, Haloperidol was the safer and correct choice.

241 In addition, the use of Haloperidol is recognised as the preferred agent for treatment of delirium in a critically ill adult: M Sasada and S Smith, "Drugs in Anaesthesia and Intensive Care", 2003, 3rd ed, Oxford University Press at 182-183. There was no suggestion by the respondent that the Commission would be in error in relying on this text.

242 The respondent did not tender any evidence to counter that of Dr Shaw. Consequently, the evidence establishes that the applicant's use of Haloperidol in the circumstances was not inappropriate; Haloperidol is both a sedative and a treatment for delirium. But the question remains as to Dr A's purpose in administering the Haloperidol and the reliability of his evidence in that regard.

243 At one point it was put to the applicant in cross-examination that he had a conversation with Dr C and said to her get the Haloperidol ready in case the Patient gets violent. Dr A denied he said this. He was then asked what he did say:

A. It was words to the effect and I can't remember specifically but it was words to the effect of, okay I note your concerns that the patient is delirious and violent you say he is asleep, that is what the conversation was coming to; and that if we need to use something I would prefer to use Haloperidol to control him if he is violent in EMU.

244 I do have some difficulty with the applicant's position that Haloperidol was not intended to be used by him to sedate the Patient for the purpose of carrying out a bladder scan/ultrasound - that is procedural sedation - but that he intended to use Haloperidol to control the Patient if he was violent in the EMU. I do not know how Dr A was going to control a violent patient with Haloperidol if it took 15-20 minutes to take effect as a sedative.

245 At another point in the cross-examination, as I have already addressed, the applicant was asked directly what his purpose was in administering the Haloperidol and his answer was for the purpose of transporting the Patient to RESUS:

Q. What was the point of the haloperidol again, on your version? Why, in the midst of all this, did you decide to ask for the haloperidol?

A. Haloperidol is a really good sedating agent for patients with delirium. The patient needed to be transported safely, and when you are controlling a delirious patient, if you can't use the intravenous drug for whatever reason you just want something on board, so that at least something is going to start working eventually.

...

Q. You have told his Honour that the point of the Haloperidol in the middle of it was in order for transport. I think you said that a couple of times?

A. That's right.

Q. But you administer the Haloperidol and you transport him within seconds, so it hasn't had a chance to work, so that really wasn't the reason, was it?

A. No, because we talk about escalation of chemical and physical restraint. So at the point where I transport him I had physical restraint, which is the way that was what I felt was safe enough at the time.

246 I find it difficult to believe the purpose of the injection was to transport the Patient to RESUS. Moreover, it simply makes no sense that a drug that takes 15-20 minutes to have a sedative effect would be relied upon to ensure the safe transport of a patient when, according to the applicant, the drug was administered only a minute or two minutes before the transport occurred. The applicant said that restraints were also applied to the Patient. One may accept they served their purpose, but they were not aided by the Haloperidol. What is more, once the applicant transported the Patient to RESUS he found it necessary to administer Midazolam to calm the Patient down to an acceptable level of sedation.

247 Despite its sedative qualities I am unable to accept that Haloperidol would, in the circumstances, have had the effect of controlling the Patient if he was violent in the EMU unless the clinicians were prepared to wait for 15-20 minutes after the drug was administered (which would seem to defeat the purpose). I am also unable to accept, for the reasons I gave, that the purpose in administering the Haloperidol was to enable the Patient to be safely transported to RESUS.

248 One may accept Haloperidol was not an inappropriate drug to administer to a patient exhibiting symptoms of delirium. That was the expert evidence. I could understand the drug being administered at the outset to address the symptoms of delirium, albeit not in the immediate short term. I can also understand that despite the potential for the Patient to react violently, the applicant may have felt he could get away with performing a quick 10-second bladder scan/ultrasound in the EMU if he was able to effectively restrain the Patient rather than having to move the Patient to RESUS, administer an appropriate sedative, connect up the monitoring equipment and perform the scan/ultrasound. Furthermore, I could understand that having been confronted with a patient violently thrashing around and spitting after the Haloperidol was administered that Dr A would abandon any attempt to perform the bladder scan/ultrasound in the EMU and transport the patient to RESUS where the scan/ultrasound could be undertaken in a safe environment. All of it a perfectly reasonable and plausible explanation.

249 However, that was not the applicant's evidence. He said he wanted to control the Patient in the EMU by using Haloperidol if the Patient became violent, which would seem to be consistent with the evidence of Dr C that her conversation with Dr A about the use of Haloperidol was all about sedation. On the other hand, Dr A said he used the Haloperidol in order that he might safely transport the Patient to RESUS. That does not fit with the timing of the Haloperidol injection and makes no sense because of the time lag in Haloperidol having a sedating effect.

250 The applicant's evidence about the purpose of administering Haloperidol was confused, contradictory, unconvincing and unreliable.

251 Whilst I am dealing with Dr Shaw's evidence I should make it clear that although I accept she was an expert in relation to the first question asked of her by the applicant's solicitors, I do not accept in an unqualified way her evidence in relation to the applicant's overall management of the Patient. Firstly, although Dr Shaw opined that the applicant's management of the Patient was that "he did... as well as anyone could in this emergency situation with an aggressive patient", the applicant himself agreed in his evidence there was no urgency about treating the Patient. Secondly, on all of the evidence before me I do not agree the applicant's overall management of the Patient was appropriate. Thirdly, Dr Shaw did not comment on the inconsistencies in the evidence regarding the timing and purpose of the Haloperidol injection and fourthly, in her answers Dr Shaw dealt with the use of the pillow, which of course is the most critical issue. Dr Shaw stated:

This was emergency management in an emergency situation, without the correct equipment to hand, with a violent dangerous patient, and with staff who were probably quite stressed. The pillow has not obstructed Patient One's breathing or physically harmed him in any way, and it has allowed the clinicians to perform needed investigations and examinations and treatment, including specifically draining the bladder, which may very well have helped resolve the delirium.

Delirious patients can later recall what happened during their acute confusional state, and in my opinion one of the only disadvantages in using the pillow, is that the patient might have been frightened. However, in weighing the risks and benefits to all concerned, frightening the patient for a short time was probably worth it, if it allowed the delirium to be treated and reversed, and the staff not to be spat on, so that they could do their job. It was not optimal, but has not led to any major unfortunate medical outcome, all things considered. Dr A had responsibility in this urgent situation of trying to best treat Patient One, and keep the patient and staff as safe as possible, and in my opinion he did both as well as anyone could in this emergency situation with an aggressive patient.

252 In cross-examination of Dr Shaw the following exchange occurred:

Q. You'd agree with me that it would be inappropriate to apply a pillow to the face of a patient and then push the patient back into bed with a pillow over his face?

A. It may be, yes.

Q. In the last sentence of the first paragraph where you deal with Dr C's paragraph 69 you've based your view entirely upon the assumptions provided to you in respect to Dr A's conduct there?

A. Yes.

Q. Then in the next paragraph, in the second sentence you have said, "If the pillow Dr A used was not held firmly on the patient's nose and mouth, there was no real potential for real harm to the patient's airway"?

A. Yes.

Q. And the assumption that you had made was that the pillow had not been applied to the face of the patient?

A. Yes.

Q. If the pillow had in fact been applied to the face of the patient there is a real potential for real harm to the patient's airway, is there not?

A. I would think that if a pillow was applied very firmly to a patient for long enough that their breathing was impaired there would be a potential for real harm to the patient.

Q. And when you say "held hard enough", you would agree that if the patient was pushed back into the bed by the use of the pillow, that is applying a degree, a significant degree of force to the patient's face through the pillow?

A. Yes.

253 If it was the case that the pillow had been applied firmly to the Patient's face for long enough that their breathing was impaired Dr Shaw accepted there would be a potential for real harm to the patient. I think this is undoubtedly so.

Crouching down/leaning over

254 The respondent observed that after the internal investigation, Dr A made a handwritten note on the transcript that he was "a little bent over" when holding the pillow. It was noted Dr A had not said that in the internal interview and it was not mentioned in his written response dated 6 June 2013, which was prepared prior to the interview.

255 The respondent submitted that description was abandoned and in later correspondence and in all of his affidavits in these proceedings, Dr A has asserted that when he was holding the pillow over the Patient's head, he held it 10 cm away from the Patient's face and that he was "crouching down" and, therefore, visualising the distance between the pillow and the Patient's face.

256 The respondent referred to the applicant's second affidavit, where he stated:

.... I was crouched down close to Patient 1 so that my face was in line with Patient 1's face.

...because I was crouching down next to Patient 1's face I could see his mouth and monitor his airways.

257 The respondent submitted this evidence was a fabrication:

It was a thin attempt by Dr [A] to paint himself as having acted in a responsible manner. It lacked any credibility if only for the fact that, in the same breath, Dr [A] asserted that he used the pillow "in the spur of the moment" and if that were the case, he would hardly have been likely to have carefully thought to position himself to measure the distance between the patient and the pillow.

258 It was further submitted:

(1) crouching down was not a body movement replicated by Dr A in his home "video";

(2) it was not a matter put to any of the respondent's witnesses. However, even if it had been put to the Respondent's witnesses, it would have been contradicted by Dr A's own evidence when, in cross-examination and for the first time, he asserted that the term "crouching down" actually meant "leaning over" the top of the pillow;

(3) Dr A further exaggerated this contention by saying (again for the first time) that as he was leaning over the pillow he was moving the pillow up and down as the Patient's head was moving in order to ensure that it remained a distance away from the Patient's face;

(4) this second more elaborate version was also never put to the respondent's witnesses. The up and down movement of the pillow was not demonstrated in the home video. It was not asserted in the internal investigation. Moreover, it is inconsistent with Dr A's own evidence that the Patient's face may have come into contact with the pillow because the Patient was moving around;

259 In responding to this attack on the applicant's credit, senior counsel for the applicant submitted:

(1) the respondent's fixation with the distinction between crouching and leaning, and the pillow being moved up and down, ignores the fact that the entire incident involving the use of the pillow lasted for 5 -10 seconds. It was a flash of a moment;

(2) the entire premise of the respondent's submissions is that the terms "crouching down" and "leaning over" are not synonymous in the context of the persons who were all standing adjacent to the bed and over the Patient, with the bedrails up. As the site visit made clear, in order to hold the pillow above the Patient's face, with the handrail in the way, the applicant would have had to lean in and crouch. None of this is surprising. What is important is the actual physical demonstration that the applicant provided in the witness box, which more than words described exactly the physical position he had taken at the time;

(3) as the respondent's submissions ignore that the use of the pillow lasted for 5-10 seconds, the respondent's assessment of the movement "up and down" of the pillow is highly exaggerated;

(4) the purpose of the home video was to indicate the parallax error. It was in no way inconsistent with the applicant's evidence.

260 In my opinion, "crouching down" and "leaning over" connote different bodily positioning. To crouch is to "lower the body with one or both knees bent, in any position which inclines the trunk forward" (Macquarie Dictionary On line edition, Macmillan Publishing Group Australia, 2014). To lean is to "incline or bend from a vertical position or in a particular direction" (Macquarie Dictionary). I am sceptical about the assertion by the applicant that he was "... crouched down close to Patient 1 so that my face was in line with Patient 1's face..." In order for that to have been the case, and with the bed rails up, the applicant would need to have been leaning well over from the upper part of his trunk, with knees straight rather than crouching down with one or both knees bent.

261 However, I cannot discount the possibility that Dr A used a poor choice of words to describe what he was doing. Nevertheless, it is not easy to accept that the applicant was leaning over to such a degree that his face was in line - that is, horizontal - with the Patient's face and he could see his face under the pillow and monitor his airways. In my view, if that is what the applicant claimed occurred, it was an untruth.

262 The alternative is that the applicant was leaning over the bed rails so that his face was close to the Patient's face in a perpendicular or vertical sense and he was moving the pillow to keep track of the position of the Patient's face vis a vis the pillow and peering over the top of the pillow, as he said in his oral evidence. If that was the case, the applicant's description in his second affidavit ("crouched down close to Patient 1 so that my face was in line with Patient 1's face"; "I was crouching down next to Patient 1's face I could see his mouth and monitor his airways") was a less than apt description of what occurred. Moreover, if this is what occurred, why could Dr C not also see that the pillow was not touching the Patient's face? Dr C was standing directly opposite Dr A adjacent to the Patient's neck and head looking down at the Patient. The applicant's contention was, however, that because of "parallax error" Dr C could not see the distance between the Patient's face and the pillow.

263 The only other way that I am able to imagine the applicant could see the distance between the Patient's face and the pillow without Dr C being able to do so, is if the applicant was leaning over the bed rail to a considerable extent and peering under the pillow from an angle of 45 degrees or more, measured from a vertical line extending straight up from the position of the Patient's head to the position of Dr A's head, as he peered under the pillow. But that is hardly consistent with the proposition that the applicant was "crouched down close to Patient 1 so that my face was in line with Patient 1's face". Moreover, if Dr A could see from this position that the Patient's face was 10 cm from the pillow why could not the clinicians standing towards the foot of the bed?

264 The applicant's evidence regarding how he was positioned to ensure the pillow was not touching the Patient's face was not consistent and barely viable.

Angle of the pillow

265 The respondent submitted that in his interview with the internal investigator on 6 June 2013, Dr A asserted that the pillow created a parallax error because he was holding it almost vertically in order to stop the "stream of spit" from the Patient. However, in his affidavit evidence Dr A asserted that he was holding the pillow horizontally over the Patient's face.

266 The respondent observed that, in the video, Dr A said that he was demonstrating how he was holding the pillow on the night and is seen holding the pillow at an angle. In cross examination Dr A's evidence was that the pillow was almost horizontal (i.e., parallel to the bed), then his evidence was that the pillow was not horizontal or vertical, but was tilted and then he said it was tilted parallel to the Patient's face.

267 The respondent submitted the versions could not be reconciled and this inconsistency was adverse to Dr A's credit.

268 The applicant submitted that consistent with the video the pillow was held at an angle or a tilt. This was consistent with the evidence that the applicant gave in cross-examination that the pillow was tilted, which he confirmed in the physical demonstration in the witness box.

269 Importantly, the applicant submitted, none of the respondent's witnesses were called on to dispute the applicant's evidence; none of them suggested that they could see through the pillow or that anything of any significance turned on the angle at which the pillow was held.

270 I do not consider any inconsistency about the angle of the pillow is such that it warrants an adverse finding regarding the applicant's credit.

Parallax error

271 The respondent submitted Dr A's assertion of parallax error of three witnesses looking from three different angles was not credible. In any event, as Dr A agreed, there was no parallax error of these witnesses' view of his body stance as he pushed the pillow onto the Patient's face.

272 The applicant submitted the respondent's submissions provide no coherent argument as to why parallax error was not present. It was untenable to suggest that there was no parallax error and, indeed, Dr C, RN1 and RN2 all agreed that they could not see through the pillow. Dr B was clearly in the same position as the other witnesses.

273 A parallax is "a misalignment in the comparison of two locations due to the relative position of the observer": Macquarie Dictionary. Parallax error occurs when a person's line of sight is not properly lined up to take a measurement.

274 The applicant had asserted through his solicitors during the internal investigation that parallax error had occurred because the positioning of other staff members who were standing behind the pillow meant they were unable to see how far the pillow was from the patient's mouth. It was asserted Dr A was the only person who was able to see how far the pillow was from the Patient's mouth. The applicant's solicitors had asserted this was because Dr A "was slightly crouched down so that he could clearly see the distance between [the Patient's] face and the pillow to ensure it remained at a safe distance whilst functioning as an effective spit barrier."

275 There was no such thing as parallax error occurring. The simple proposition by the applicant was that he could see the distance between the pillow and the Patient's face (because he was slightly crouched down), but the other clinicians could not because they could not see through the pillow.

276 If the applicant was only "slightly crouched down", that is knees slightly bent and body slightly lowered, I gravely doubt he could see the Patient's face for the reasons I gave in relation to "crouching down/leaning over".

The Hudson mask

277 The respondent submitted the four eyewitnesses it called gave evidence that the Hudson mask, applied by RN2, was applied properly. RN2 gave evidence that she had applied them many times and well knew how to do so.

278 The respondent observed that Dr A was the only person who asserted that the Hudson mask was not properly applied. Further, Dr A's evidence was that the Hudson mask was "still folded" and sitting on the Patient's cheek.

279 The Hudson mask was in evidence. The respondent submitted even a cursory examination/ demonstration of it illustrated that if the elastic band was placed around and behind a person's head, the mask itself could remain "folded". The respondent explained that the sides of the mask separate, thereby opening it up, as the elastic is pulled in opposite directions to go around the head. The respondent submitted there was no assertion by Dr A that the mask had simply been placed on the Patient's face without the elastic being applied behind his head and certainly that was not put to any of the respondent's witnesses.

280 The respondent submitted this was another example of Dr A's exaggeration or fabrication of evidence.

281 In any event, it was submitted, even if Dr A's evidence was to be accepted that the Hudson mask had dislodged from over the patient's mouth, the use of the pillow (a second time) was entirely unwarranted when the most obvious course of action would have been to request the nurse to re-position the Hudson mask.

282 I have a real difficulty understanding why the applicant would find it necessary to place a pillow over the Patient's face to prevent spitting if the Hudson mask was properly applied and prevented any spitting to occur. There is also the possibility that although the mask was initially applied properly the possibility cannot be discounted that the violent motion of the patient dislodged the mask.

283 Whilst the applicant's evidence regarding the mask is inconsistent with the evidence of the other clinicians I am prepared to give the applicant the benefit of the doubt regarding the placement of the Hudson mask.

Spit: a stream or waterfall?

284 The respondent submitted a further example of Dr A's exaggeration was to be found in his description of the Patient's spitting.

285 The respondent conceded that when the Patient spat at Dr A, it was a noticeable amount of spit. However, it was submitted, the same could not be said of the Patient's spitting thereafter.

286 The respondent observed that in the internal investigation interview, Dr A stated that on his return from washing his face, the Patient "continued to spit". Dr A then said he used the pillow (after the Hudson mask had been applied) as a spit shield because the spit was a "stream which continued".

287 During cross-examination, Dr A's description of the patient's spitting escalated from a steady stream to a continuous flow of spit coming out at himself and the other clinicians and then he said it was like a "waterfall". Dr A described the patient as being at risk of choking on his own spit.

288 As the respondent submitted, no one other witness described the Patient's spitting in those terms or anything approaching it.

289 The respondent submitted Dr A's exaggeration of the Patient's spitting was intended to support his proposition that there was imminent danger from the Patient spitting so that he was, in some way, justified in his use of the pillow even though the Hudson mask had been applied.

290 In my opinion, it was an exaggeration to claim the spit was a stream or a waterfall. That a patient, described by the applicant as a "dry old man", was capable of producing such an amount of spit it could be regarded as a waterfall is fanciful and not supported by any other evidence.

291 I do not take a particularly adverse view of this exaggeration, although it does not encourage a favourable opinion of the applicant's credibility.

Thoughtful consideration

292 The respondent submitted a further example of Dr A's exaggeration and fabrication of evidence, was his assertion that when he returned from washing his face, he engaged in two to three seconds of "thoughtful consideration." As the respondent observed, Dr A said that in this period, he thought carefully about the safety of the patient, the safety of the other clinicians and his own safety and only after having undertaken that consideration, did he pick up the pillow and use it as a makeshift spit shield. It was also during this time that Dr A said he was undertaking an assessment about the efficacy of the Hudson mask or a non re-breather mask.

293 The respondent submitted none of that evidence sat comfortably with Dr A's assertion that he picked up the pillow "on the spur of the moment".

294 Senior counsel for the respondent submitted Dr A's evidence of this "thoughtful consideration" was a fabrication, an embellishment to portray himself in a positive light, as taking into account safety issues and patient care. This, the respondent said, was false because if there had been any thoughtful consideration of safety issues and patient care, the logical and viable options would have been:

(a) To direct that the Hudson mask be re-positioned (if it had truly become dislodged); and/or

(b) maintain observation and restraint of the patient until the sedative took effect; and/or

(c) ask [RN2] to look in the utility box for other PPE or go elsewhere to obtain face-shields or more suitable PPE.

295 In relation to PPE, the respondent said it was notable that during the internal investigation, Dr A asserted that there was no utility box at all next to the bed and that normally he could have reached in and grabbed something. This, the respondent said, was untrue.

296 The respondent submitted:

Dr [A's] assertion about his "thoughtful consideration" also sits uncomfortably with the fact that he had been absent from the patient for some 30 seconds whilst he was washing his face. If he had not been impatient and angry (as the Respondent contends), he would have utilised that time (or at least the time walking back from the sink) to consider what to do. Given that [RN2] gave evidence that he had gone in the direction of the sink near the pan room to wash his face, Dr A would have been in the immediate vicinity of the crash cart where the PPE was stored and if he had been thinking about safety issues (which he was not), he could have easily obtained some PPE.

297 The respondent contended Dr A's "thoughtful consideration" ought to be found to be a fabrication.

298 Senior counsel for the applicant submitted the respondent's submissions unfairly and unjustly mischaracterised the applicant's evidence. The applicant's evidence was that he gave "thoughtful consideration" in the two to three seconds he had to assess the situation upon his return to the bed. Any thoughtful consideration was necessarily limited to the time he had available to him to make a judgment.

299 Counsel said it was probably correct that with the benefit of hindsight other viable options were available to the applicant and he had conceded that to be the case. However, that did not mean he gave no consideration at all to the safety of the Patient, his colleagues and himself. This is what he attempted to do by his spur of the moment decision to use the pillow as a spit barrier.

300 The respondent's submissions regarding "thoughtful consideration" and about what the applicant actually thought and what he should have thought do not constitute a sound basis upon which I would find it was a fabrication. I do, however, consider the use of the phrase "thoughtful consideration" by Dr A was an embellishment that only served to heighten my scepticism about the reliability of Dr A's evidence.

The video

301 Dr A and his spouse made a video recording. The purpose of the video was, in the words spoken by Dr A on the video, to demonstrate what occurred during the pillow incident.

302 Dr A's evidence was that the bed utilised in the video was a Queen or King size bed and his wife (whilst holding the camera) was kneeling on the bed and moving around to different locations (as Dr A nominated where witnesses were standing) with the camera focused on Dr A.

303 A soccer ball lying on the bed was said to represent the Patient's head and Dr A is shown holding the pillow.

304 The respondent submitted the video misrepresented the following matters and/or was inconsistent with other evidence:

(a) from the site inspection and the photo of the EMU Bed, it is evident that an EMU bed is significantly narrower that the bed in the video. However, there was no marking on the bed in the video showing the width of an EMU bed. Although difficult to ascertain accurately, it is fairly clear that the position where Dr A's wife was said to be kneeling on the bed when she was opposite Dr A, was at a greater distance than for an actual EMU bed;

(b) from the site inspection and the photo it is evident that an EMU bed is significantly higher off the ground than the bed in the video;

(c) Dr A is holding his left arm straight in the video. If that was how he was holding the pillow on the night, then because an EMU Bed is significantly higher, the pillow would have been on the Patient's face;

(d) it is common ground that the handrails were up and that is not taken into account at all in the video;

(e) the height at which the camera was held, if Dr A's wife was kneeling on the bed and looking through the view finder would be different than the line of sight of the witnesses standing next to an EMU bed. Even though Dr A said his wife and he had made adjustments for that in rehearsal, that evidence ought to be regarded as recent invention. That was the first time any such qualification was made in relation to the video and there is no evidence that Dr A was aware of the height of the witnesses;

(f) further, it is apparent from the video itself that the camera was being held at or above Dr A's head when showing the alleged line of sight for Dr C and RN1, but when the camera was purportedly showing the angle of Dr B's line of sight, the camera dropped down, below Dr A's shoulder;

(g) the soccer ball is stationary and all of the evidence was that the Patient was moving his head;

(h) the soccer ball sits wholly above the mattress when a human body would sink in to a mattress;

(i) Dr A states on the video that he is holding the pillow as he did on the night. However, it is apparent that it is only when the camera moves to a position at the top of the bed, when his wife his standing on Dr A's right hand side, that the soccer ball is visible;

(j) in his correspondence during the investigation and in his affidavits, Dr A asserted that he was "crouching down" but in the video, his stance was standing;

(k) in cross-examination, Dr A gave evidence that "crouching down" meant "leaning over" the top of the pillow and he is certainly not doing that in the video;

(l) further, in cross examination the following exchange took place:

Q. And you're leaning over the top of the pillow. And what are you doing? You're moving the pillow up and down, are you, to keep it away from his face all the time?

A. Yes, most definitely.

...

Q. So you're moving the pillow now?

A. I must have been, yeah, because I remember being very conscious of keeping it off the patient's face.

305 The respondent observed that in the video Dr A stated that he was "holding the pillow in the same manner as he did on the night". However, he was not moving the pillow up and down.

306 The respondent submitted the video was another false account by Dr A and added further support to the respondent's contention that he has been untruthful.

307 In responding to the respondent's critique of the video, the applicant submitted the respondent mistook the true and proper purpose of the home video made by the applicant, that being to convey parallax error and the line of vision of the other witnesses.

308 In specific response to the respondent's submissions, the applicant submitted:

(a) the video did its best to simulate the hospital bed scenario. It is clear from the position where the video footage has been taken that the Applicant's wife was not standing at the edge of the Applicant's bed, but was kneeling on top of the bed. In any event, if the hospital bed was narrower than where the Applicant's wife was kneeling, the parallax error would have been greater as the other witnesses are unlikely to have been able to see under the pillow;

(b) the height of the bed was sought to be simulated by the Applicant's wife kneeling on the bed. It is apparent from the video that it is taken from a height and there is no basis for the assertion that the Applicant's evidence in this regard was a recent invention;

(c) the contention regarding how Dr A was holding his left arm leads to a physical impossibility and is rejected;

(d) that the handrails were up only makes it more unlikely that the Applicant could have forced the pillow into the face of the Patient if he was holding it with his left hand in the centre of the pillow. Unlike the Applicant, the Respondent has made no attempt to provide the Commission with any assistance as to the manner in which it alleges that the Applicant applied the pillow to the face of the Patient whilst holding it with his left hand and leaning or crouching over the handrails. Of course, the Respondent has never tried to explain the even more bizarre assertion from Dr C that all edges of the pillow were touching the bed sheets;

(e) the Commission is invited to review the video to make its own assessment as to whether it has fairly accounted for the lines of sight of the various witnesses;

(f) the Respondent makes the trite observation that the soccer ball was stationary, as if somehow the Applicant should have simulated a moving head. However, the movement of the Patient's head is, in fact, inconsistent with the Respondent's case. If the Patient's head was moving, it was hardly being smothered. Further, it is more consistent with the Applicant's case that the Patient was continuing to lunge and his head may have come into contact with the pillow in an inadvertent manner;

(g) there is no evidentiary foundation for the assertion that human head would "sink into a mattress", or that it would sink into a mattress of a hospital bed. Common sense suggests that this would depend on the firmness of the mattress. Again, if the Respondent wished to contradict the Applicant's evidence, it should have called its own evidence in this regard;

(h) the Applicant in the video is, in fact, leaning into the bed and is slightly crouched over the top of the ball with the pillow. The Applicant's position in the video is exactly as he has described it in his evidence. As noted above, with the handrails of the bed in the up position, it is difficult to have reached the Patient without leaning and crouching slightly;

(i) the entire incident lasted 5-10 seconds and the Applicant in the video was holding the pillow as best as he could recall he held it in those few seconds.

309 Having viewed the video I did not find that the video was of any particular assistance. It was a simulation conducted in an environment completely foreign to where the pillow incident occurred, it is tainted by being self-serving and I fear that to have regard to it I may be misled.

Applicant's hand drawn diagrams

310 On 12 August 2013, Dr A responded to the Health Care Complaints Commission and provided hand drawn diagrams indicating where (in his version) he and everyone else were standing at the time when he utilised the pillow.

311 The respondent submitted the diagrams were distorted such that they must be seen as misrepresentative. The respondent submitted the diagrams were false in the following respects:

(a) the first diagram has the utility box sticking out from the wall, well into the centre of the bed. At the site inspection, the utility box was on a column adjacent to the area, leaving a gap between that column and the bed. Further, the utility box stood out no more than 30 centimetres from the wall, so that even if the events took place in EMU Bed 9 (which is denied), its size would still not have been as represented in the first diagram;

(b) the distortion as to the placement and size of the utility box meant that the circle representing Dr C is physically unable to be placed at the top of the bed (where she said she was located). However, if accurately portrayed as being on the column (or even on the wall) Dr C was able to stand where she said she was, at the top of the bed.

(c) in the first diagram, the bed is placed close to the wall. From the site inspection and the evidence given by a number of witnesses, the placement of the EMU beds is made according to a line of the floor, which then sets the bed out from the wall. In any event, abutting the bed to the wall would have made access to the panel containing the oxygen valves etc., impossible. The distortion has the effect of placing the witnesses further down the bed and away from the pillow;

(d) in the first diagram, the placement and size of the ultrasound scanner were out of proportion;

(e) the circle representing Dr B is misplaced, as she was standing right next to Dr A at the level of the Patient's waist;

(f) the second diagram is wholly unbelievable as it has the head of the bed tilted upwards - a fact not asserted by Dr A anywhere else. Further, the contention that the head of the bed was tilted was not put to any of the eyewitnesses.

312 In responding to the respondent's criticisms of the diagrams, the applicant submitted the purpose of the diagrams was to be a visual aid to the Medical Council and it would expected that members of the Medical Council would be well aware of the configuration of hospital beds and utility boxes.

313 Further, and in any event, it was submitted the respondent's eyewitnesses all gave different versions, or none at all, as to where the bed was positioned, where the utility box was positioned and where Dr B was standing. Everyone, other than Dr B, had her standing in a different position. Further, only RN2 gave evidence that the bed was about one metre away from the back wall. The applicant submitted that given the inconsistencies in the respondent's own case, it was not tenable for it now to attempt to present a coherent case about these matters or to unfairly accuse the applicant of a fabrication or distortion.

314 I do not find the hand drawn diagrams were a deliberate attempt by the applicant to mislead. The diagrams were very roughly drawn with a view to demonstrating approximately where each clinician was standing in relation to the bed. I would say, however, the diagrams had a potential to mislead. The position of the utility box on the left hand side looking from the end of the bed - which I accept was Bed 8 - did not extend out as far as depicted and the ultrasound machine was not obstructing the applicant. Further, that the depiction in one of the diagrams that the head of the bed was tilted upward was not something asserted by Dr A in any of his other evidence including in the video, nor was it contended in any submission made by the applicant and nor was it mentioned by any other witness. I do not accept the head of the bed was tilted upwards. Dr A's recollection in that respect was faulty.

Conduct and behaviour of Patient

315 The respondent submitted that Dr A had, through the course of giving his version of events, exaggerated the conduct and behaviour of the Patient in order to provide support for his story that he applied the pillow out of concern for the Patient's safety and that of the staff.

316 The respondent accepted that the Patient was in delirium and that he was exhibiting aggressive and non-cooperative behaviour. However, it was observed the Patient was 94 years old and of slim build. Further, at the relevant time, the Patient had been given a sedative.

317 The respondent also accepted that the Patient was trying to sit up. However, it was noted "this frail patient was being adequately kept in bed by 3 people for most of the time (Drs C and B and RN1)." It was submitted:

Dr [A] had no compunction about the safety of his colleagues when he let go of the patient to do the scan or when he left the EMU to wash his face, or when he left again to go and get the Nurse Co-ordinator in Resus, each time without any communication to his colleagues.

318 The respondent submitted four other clinicians all said that they had experienced spitting from patients before and that it was not uncommon. None of them said that they felt they were in danger from the spitting. None of them said anything to that effect at the time and Dr A never inquired of them whether they were concerned about the spitting.

319 The respondent observed that none of the other clinicians said that they thought the Patient could have "leapt out of the bed" (as asserted by Dr A).

320 The respondent submitted Dr A, on the other hand, consistently exaggerated the Patient's behaviour. In the clinical notes, Dr A described the Patient as having "jumped out of bed" when describing the earlier fall earlier in the night. In cross-examination, he conceded this was an exaggeration.

321 Dr A continued in the clinical notes by stating:

In EMU, I attempted to gain control of his violence thru (sic) IMI Haloperidol as it was not apparent had a (sic) IV in. He spat in my face twice and punched me. ...

He was in danger of jumping out of bed again....

322 It was submitted this exaggeration, when taken together with Dr A's other fabrications was evidence of his dishonesty.

323 The applicant, on the other hand, submitted his evidence as to the Patient's behaviour was consistent with the evidence given by other witnesses:

As noted in the Applicant's Primary Submissions, Dr C herself had experienced the Patient's violent behaviour earlier in the evening and had described him as climbing the walls. She had also exposed RN2 to being assaulted by the Patient, though RN2 was pregnant. RN1 said the Patient lurched and spat at her and had wild eyes. Dr B gave evidence that the Patient was lunging and trying to get up. The Respondent's post fact attempts to downplay the Patient's behaviour should be rejected. It should be held to the evidence which it called in its own case.

324 It is quite apparent from the evidence that the Patient was acting in an aggressive manner. He reacted violently when approached, he lashed out and punched clinicians, he was spitting and it was necessary to restrain him. The Patient represented a danger to himself and to the treating clinicians.

325 I do not consider the applicant overstated the Patient's conduct to the extent it would be regarded as an exaggeration adversely affecting the applicant's credibility.

Conclusions regarding credit

326 I am unable to find the applicant was a completely credible and reliable witness. That flows from my findings regarding the timing of the Haloperidol injection, the purpose of that injection and crouching down/leaning over. The applicant was also prone to a degree of exaggeration designed to favour his case.

327 Consequently, I have approached the critical question of whether Allegation One should be sustained with a greater degree of scepticism about the applicant's version of what occurred than what otherwise would be the case.

Whether the applicant used the pillow twice

328 I earlier found that after the Hudson mask had been applied, and after the applicant had returned from washing his face, the applicant picked up the pillow and used it in some way in relation to the Patient, but that he did not forcefully apply the pillow to the Patient's face.

329 The applicant claimed this was the only occasion on which he used the pillow in any way at all. The allegation is, however, that on an earlier occasion the applicant had also picked up the pillow and forcefully applied it to the Patient's face after being spat upon following an attempt by Dr A to perform a bladder scan on the Patient. This was Allegation One, which was sustained by the respondent's Chief Executive and constituted the essential reason underpinning the decision to dismiss Dr A.

330 Dr C, Dr B, RN1 and RN2 gave evidence that Dr A used the pillow on two occasions. The first occasion was after being spat upon by the Patient. This occurred shortly after the Haloperidol injection and as Dr A attempted to carry out the bladder scan. The second occasion was after Dr A returned from washing the spit off his face and, according to Dr A's evidence, found it necessary to use the pillow as a spit shield because the Hudson mask that had been applied by RN2 had become dislodged from covering the Patient's mouth.

331 I have no doubt that the pillow was used twice by Dr A. There is no basis to disbelieve the other four clinicians on this point. Accordingly, I do not accept Dr A's evidence that the pillow was used only once.

332 The sequence of events was, in my opinion, as follows:

(1) Dr A and Dr C had a second discussion about sedation for the purposes of undertaking the bladder scan. In that discussion Dr C told Dr A that the patient ought be taken to RESUS, administered Midazolam, undergo a bladder scan and have a CT brain scan.

(2) Dr A said to Dr C she should chart 5mg Haloperidol for an intra-muscular (IM) injection as the correct sedative and that a CT brain scan was unnecessary.

(3) Dr C charted the Haloperidol.

(4) RN2 obtained and prepared the Haloperidol.

(5) Dr A, Dr C and RN2 attended the Patient. RN1 and Dr B came to assist.

(6) Dr A approached the Patient and woke him up. The patient became verbally and physically aggressive.

(7) The Patient was rolled on to his left hand side. RN2 administered the Haloperidol into the Patient's right buttock. Haloperidol takes about 15-20 minutes to effectively sedate a patient.

(8) The Patient was then rolled on to his back.

(9) The Patient was being held down. His gown was lifted up to expose his skin for the purpose of the scan.

(10) Dr A did not wait for the Haloperidol to take effect before commencing the bladder scan.

(11) At this point, looking from the foot of the bed towards the head of the bed, the attending clinicians were placed as follows:

(a) Dr A was standing on the right hand side of the bed at the level of the patient's shoulders/ neck.

(b) Dr B was standing on the right hand side of the bed, at a point between the Patient's waist and the lower end of the bed. Dr B said she was holding the Patient's left arm. The weight of the evidence was that Dr B was holding a leg of the Patient.

(c) Dr C was on the left hand side, at the top of the bed, at the level of the Patient's shoulder/neck/head. She was holding the Patient's right arm.

(d) RN1 was on the lower left hand side of the bed, concentrating on the Patient's left leg.

(e) RN2 was moving from her position on the left hand side of the bed where she had administered the Haloperidol, and then stood at the bottom of the bed. She was holding the kidney dish in which the used syringe had been placed.

(12) Dr A picked up the probe of the ultrasound scanner and turned to place the probe on the Patient.

(13) The patient spat at Dr A.

(14) Dr A then picked up the pillow. What he did with it is, of course, the critical question. That will be considered under the next heading.

(15) Dr A said nothing to his colleagues about what he was doing or why.

(16) Dr A then let go of the pillow and left EMU Bed 8 to wash his face. Before leaving, Dr A said nothing to the other clinicians present.

(17) Dr A was absent for about 30 seconds.

(18) In that time, RN2 went to the blue utility box situated on the left side of the bed on a column abutting the wall behind the bed, obtained a Hudson mask and applied it to the Patient's face.

(19) When Dr A returned, he did not communicate with any of the other clinicians. He went back to the top of the bed, picked up the pillow and used it as a spit shield. He stated words to the effect "this will not impair his ventilation". He asked Dr C to hold the pillow. Dr C refused and dropped the pillow to her side.

(20) Dr A directed RN2 to get restraints.

(21) RN2 returned in about 20-30 seconds and the restraints were applied.

(22) Dr A then left EMU Bed 8 again. He spoke to the Nurse Co-ordinator and obtained a bed in RESUS for the Patient.

(23) Dr A then returned to EMU Bed 8, did not communicate any request to the other clinicians for help and moved the bed to RESUS by himself.

(24) In RESUS, Dr A administered IV Midazolam. The patient was sedated within 30 seconds. He carried out the bladder scan, inserted a catheter and then arranged for the Patient to have a CT brain scan.

333 Because I have not accepted Dr A's evidence about this significant issue the question arises as to whether I should find he was untruthful, which is tantamount to accusing him of perjury, a criminal offence.

334 Again, the respondent did not put to the applicant in cross-examination that he was being deliberately misleading or untruthful, so I had no opportunity to consider his response and demeanour in answering such a strong accusation. There is an obvious motive in Dr A denying the use of the pillow on the first occasion, but such was the weight of the evidence against him, it is difficult to believe an intelligent man like the applicant would deliberately lie and expose himself to an accusation tantamount to perjury by providing a version of events that could not possibly be accepted on any reasonable basis.

335 I am not prepared to find the applicant was deliberately untruthful about the use of the pillow on the first occasion including for the reason there exists the possibility that the applicant's recollection of events was faulty and, therefore, unreliable. .

Whether applicant forcefully applied the pillow to the Patient's face

336 The applicant maintained that the incident alleged in Allegation One never happened at all. I have found that Dr A, after the Haloperidol injection and after being spat on by the Patient, picked up the pillow. The critical question is what he next did with the pillow? The allegation against Dr A is that he forcefully applied it to the Patient's face. Is that allegation made out? That is a question I have found very difficult to answer.

337 It is a legitimate question to ask that if the applicant's evidence in relation to other aspects of his evidence is unreliable, why might that not also be the case in relation to the critical issue? Indeed, given the criticality of the issue of whether the pillow was forcefully applied, was the applicant untruthful in his evidence?

338 The approach I have taken is to recognise that the onus falls upon the respondent to prove the applicant forcefully applied the pillow. The onus is not upon the applicant to disprove it.

339 I need to be reasonably satisfied beyond "inexact proofs, indefinite testimony, or indirect inferences" that the applicant forcefully applied the pillow. I am dealing here with an allegation that is tantamount to assault by a medical practitioner on his patient. The consequences of a finding against the applicant would in all likelihood spell the end of his career in emergency medicine. A specialist in emergency medicine is a valuable community resource. One does not dispense with such a resource without a compelling reason for doing so.

340 Despite being very troubled by aspects of the applicant's evidence, and with a high degree of scepticism about Dr A's version regarding the use of the pillow, I am ultimately unable to find that Dr A forcefully applied the pillow to the Patient's face. My reasons are set out in the following paragraphs.

Briginshaw standard applied

341 I am required to apply the civil standard of proof, that is, on the balance of probabilities. For the reasons I gave earlier, in applying that standard I have had regard to Briginshaw and s 140 of the Evidence Act.

Not all witnesses saw the pillow come into contact with the Patient's face

342 None of three clinicians present (Dr C, RN1 and RN2) actually saw the pillow come into contact with the Patient's face. None of them could see what was happening under the pillow. Nevertheless, Dr C and RN2 concluded that Dr A had forcibly pushed the pillow into the Patient's face because of the position and actions of the Patient, the movement of the pillow as Dr A pushed it down and Dr A's body stance as he applied the pillow to the Patient's face. Dr B maintained that the Patient was trying to sit up and Dr A forcefully applied the pillow to the Patient's face and "physically pushed the patient back using the pillow against the patient's face back down onto the bed."

343 Dr C's affidavit evidence was that Dr A held the pillow "hard down on the patient's face. ..."; that Dr A:

...held the pillow down for some time. He used one hand over the centre of the pillow and his right hand was on the edge of the pillow. Dr A was applying pressure through the pillow. I can't say for sure how long Dr A held the pillow down but it seemed like a long time. I would say definitely 60 seconds and after that the pillow remained in contact with the Patient's face but the pressure wasn't as bad.

344 In the record of interview, Dr C stated that when Dr A used the pillow on the first occasion:

One hand was firmly over the centre of the pillow which was the part of the pillow that was making contact with the patient's face and his right hand was on the edge of the pillow. So he wasn't applying force with both of his hands but with one hand on that occasion.

345 When Dr C was asked "...how were you able to tell whether the pillow was making contact with the patient's face?" She responded as follows:

The edges of the pillow were making contact with the bed sheets, so it was clearly being applied, I mean the patient's face is elevated above where the bed sheet is, so I find it difficult to understand if the edges of the pillow were making contact with the bed sheets, if it wasn't making contact with the patient's face as well the patient's chin was in contact with the edge of the pillow so it was definitely in contact with the patient's face.

346 If the applicant was forcing the pillow into the Patient's face with his left hand, there does not seem to be any necessity to have his right hand on the edge of the pillow, unless he was seeking to ensure the pillow did not come into contact with the Patient's face.

347 Further, if Dr A used the pillow to drive the Patient's head into the bed with such force that the edges of the pillow were making contact with the bed sheets and this was done for a period of "definitely 60 seconds" it seems almost inevitable that it would seriously affect the Patient's breathing, particularly as the contents of the pillow were encased in a non-porous plastic covering. The evidence was, however, the Patient's breathing was not affected.

348 Dr C's evidence that the pillow was forcefully applied for a period of "definitely 60 seconds" is, I think, implausible not only because the Patient would have suffered acute breathing difficulties and did not, but also because it is hard to accept that someone who has been spat on in the face by what appears to have been a considerable amount of spit, would spend 60 seconds placing a pillow over a patient's face before taking action to remove the spit.

349 The other point to be made is that 60 seconds, in the circumstances of what allegedly occurred, is a long time. I think the incident occurred over the space of 5 -10 seconds. To misjudge the duration of the incident to the extent it was suggested - that it took at least six times longer than it did, introduces a doubt about the accuracy of Dr C's recollection.

350 I am not suggesting in any way that Dr C was untruthful or that she exaggerated her evidence. Dr C presented herself as an honest witness who gave evidence to the best of her recollection. However, I note she said she was traumatised by the incident, which may have had the effect of altering her recollection to the point where she convinced herself that the pillow was forcefully applied to the Patient's face. In my opinion, seeing a pillow placed very close to a patient's face, especially an elderly person suffering from delirium, would have been a confronting experience for a young doctor and something she would never have expected to see. Moreover, Dr C said she felt intimidated and had lost her confidence after Dr A had instructed her to chart the Haloperidol, which made her vulnerable, in my view, to any further escalation to any further unpleasant and confronting experience

351 I note that Dr C approached Dr D shortly after the incident to make a complaint to him. Dr D told the internal investigators that when Dr C reported the matter to him she could not be sure that the pillow had in fact come into contact with the Patient's face. According to the transcript of interview conducted with Dr D, Dr C had told Dr D "a pillow had been employed by Dr A to prevent the man from spitting further". Dr D further recorded that Dr C felt that the pillow was "potentially smothering" the Patient although "she couldn't tell me that that was actually what happened". Dr D further stated that:

Again it sounded as though it was a dark environment and she couldn't give me any specific objective criteria that he was being smothered but she said that that was her concern from where she was standing.

352 Dr C did not tell Dr D that the pillow was actually forcefully applied to the face of the Patient, or that it had been done so for 60 seconds or that it had occurred over two occasions.

353 Dr C then recorded the events of the evening in the Clinical Notes. She did so a matter of hours after the incident had occurred. In those Notes, Dr C stated that:

The ED registrar then attempted to use the pillow which had been behind the patient's head as a barrier between himself and the patient.

354 The Clinical Notes do not record any alleged forceful application of the pillow to the face of the Patient for 60 seconds or otherwise.

355 Dr C sought to explain that the reason why she did not record in the Clinical Notes that the pillow had been forcefully used was because she did not want a record to be kept of the incident, as she knew that it would have a serious impact on Dr A's career. However, by this time Dr C had already reported the matter to Dr D and knew that Dr D would be escalating the matter to higher levels within the hierarchy of the Hospital.

356 About 1-2 days later, Dr C then completed an AIMS Incident Report in which she alleged that Dr A had forcefully applied the pillow to the Patient's face "whilst stating that he was not threatening the patient's airway to those present". This was the first time that Dr C made any complaint about the pillow being applied to the face of the Patient. Dr C then maintained her position in her record of interview in the internal investigation and in her affidavit that Dr C had forcefully applied the pillow, which was in contact with the Patient's face. In cross-examination Dr C conceded she could not actually see the pillow touching the Patient's face.

357 Dr C's escalation of the seriousness of what she allegedly witnessed, after downplaying that seriousness in the first two of her reports made almost contemporaneously with the incident, creates further doubt in my mind about the reliability of Dr C's recollection.

358 As I have noted, Dr B's evidence was that Dr A used the pillow to force the Patient's head back down onto the pillow. Her evidence was that this occurred over a period of about 5-10 seconds. Dr B said in her statement to the internal investigators:

Dr [A] took the pillow from behind the patient's head as [the patient] was leaning forward trying to get up. Dr [A], using his left hand, pushed the patient into the bed with the pillow covering the patient's face. He held the pillow on his face for approx. 5 - 10 secs

359 In her oral evidence, Dr B stated:

The patient was sitting up in the bed and physically pushed back on to the bed with a pillow.

360 Dr B's evidence was different from that of Dr C, RN1 and RN2 in that none of those persons made mention of the applicant using the pillow to force the Patient's head back down on the bed. Dr A, however, did agree that the Patient sat up to spit on him. Whilst RN1 said the Patient was "lunging about trying to sit up" her evidence was not entirely clear about how the pillow was used, except that she could not see whether the Patient's face came into contact with the pillow. More importantly, however, Dr B said she was standing on Dr A's left side at about the position of the Patient's waist. Dr C gave evidence that Dr B was at the patient's left lower limb. RN1 said that Dr B 'may have at some stage' been at the Patient's left leg. RN2 gave evidence that Dr B was standing at and holding the Patient's left leg. Dr A said he had asked Dr B to hold the Patient's left arm. My view is that Dr B was at a position between the waist of the Patient and lower end of the bed, but she may well have moved about between those points.

361 Dr B said that "Dr A, using his left hand, pushed the patient into the bed with the pillow covering the patient's face." From Dr B's position I find it difficult to understand how she actually saw the pillow come into contact with the Patient's face. Dr B may have assumed it did because she saw the Patient's head go backward down onto the bed with a pillow following immediately thereafter. But Dr B said nothing about Dr A's right hand, which could easily have been on the Patient's shoulder and it could have been Dr A's right hand that was forcing the Patient back down and not the pillow held against the Patient's face. I note that Dr A stated that he used his right hand during the incident briefly on the Patient's left shoulder to stop him from getting up whilst he was holding the pillow as the spit shield.

362 Additionally, Dr B's recollection of events was a little hazy in that in relation to the second time the pillow was used she could not recall who used the pillow. Dr B said, "It is not something I can now remember." In this respect, I note the first time Dr B recorded her version of the events in question was some two weeks after the incident.

363 In her affidavit evidence RN2 stated:

I had an unobstructed view of Dr [A] and I saw him use his left hand to hold the centre of the pillow and then hold it firmly down on the patient's face. ...I saw from Dr [A's] body movement that he was pressing it down and the pillow made contact with the patient's face.

Dr [A] pressed the pillow down on the patient's face for about 4 to 5 seconds but I cannot be sure of the exact time.

364 In her oral evidence RN2 stated:

Dr [A] had his hands flat on the pillow. Dr [A's] upper body was turned in towards the pillow and then changed down towards the patient so the pressure was from the shoulders into the patient and through the pillow.

I witnessed Dr [A] pushing the pillow on Patient 1's face for about five seconds.

365 In the cross-examination of RN2, however, the following exchange occurred:

Q. The pillow obstructed your sight of Patient 1's face, I think that's your... the pillow obstructed your sight of Patient 1's face; correct?

A. Yes.

...

Q. So is this your evidence, you didn't actually see the pillow come into contact with Patient 1's face but you assumed that because of the stance of Dr A?

A. Yes.

366 RN2's oral evidence was that the applicant had both hands flat on the pillow, which is different to the evidence of Dr C and Dr B, who both believed Dr A applied force to the pillow with one hand. RN1 believed Dr A held the pillow with one hand.

367 In considering the reliability of RN2's evidence, she initially stated that Dr A used his left hand to hold the centre of the pillow firmly on the Patient's face. RN2, however, changed that evidence in quite a substantial way when she gave oral evidence and that was Dr A applied the pillow with force using both hands flat on the pillow. That was RN2's oral evidence about Dr A's stance and upon which she based her conclusion the pillow was forcefully applied because she did not actually see the pillow touch the Patient's face. RN2, however, was the only witness to say that Dr A used both hands flat on the pillow. In those circumstances, and because RN2 did not actually see the pillow touch the Patient's face and because she substantially changed her evidence, I do not feel able to place such reliance on RN2's evidence that it contributes to proving Allegation One.

368 RN1 saw the pillow being held over the Patient's face, saw movement under the pillow and that the Patient "indented the pillow at some stage". However, RN1 "couldn't say whether it was directly on his face or whether it was hovering over it or whether it was right on his face because I was looking directly onto the pillow." Even if RN1 was concentrating on holding the Patient's leg, it seems to me she was able to see enough of what occurred to make a judgment about whether Dr A forcefully applied the pillow to the Patient's face. The indenting of the pillow and the movement of the pillow could have been caused by the Patient lunging about and not necessarily because Dr A was forcefully applying the pillow.

369 RN1's evidence could not constitute the basis of a finding that Dr A applied the pillow forcefully to the Patient's face.

No clinician present voiced concern

370 At no time during the alleged incident did any of the other staff members present voice any concerns or attempt to remove the pillow or stop Dr A. It appears that at least Dr C and Dr B felt Dr A's actions placed the Patient at risk, but they said they were either frozen or felt too helpless to intervene. It is difficult to believe that clinicians working in an ED would be incapable of taking preventative action if they seriously felt that someone's safety, especially that of a patient, was in jeopardy. Dr A was indirectly criticised for not calling security. There is no reason why the other clinicians present, if such was their concern, could not have called security.

Applicant's record in treating patients

371 The applicant has been a medical practitioner for 23 years. There is no evidence of any previous incidents of the applicant mistreating a patient. Dr A said he possessed specialist level airway skills, and considered that applying the pillow to the Patient's face in the circumstances would have put the Patient at the risk of aspiration and asphyxia, especially in view of his delirium and supine position. The respondent did not contradict that evidence.

372 Accordingly, there is no evidence to suggest that Dr A had a predisposition towards mistreating patients.

No harm to Patient

373 There was no evidence of any harm to the Patient. Despite it being alleged that the applicant forcefully applied a non-porous plastic encased pillow to the face of a 94-year-old man who was thrashing around violently, there was no indication that the Patient had become short of breath. The statement in the Chief Executive's letter of 6 November 2013 that the applicant had failed to acknowledge the possibility that the Patient may have been "psychologically affected" was pure speculation and carries no weight.

374 If the allegation contained in Allegation One were true, it would amount at the least to an assault in respect of which the applicant would have been criminally liable. The Patient had been approached by the Police to inquire whether he wished charges to be pressed against Dr A. Apparently, the Patient declined to pursue any action and the Police did not take the matter any further.

375 After the incident I note the evidence that Dr A transported the Patient to RESUS without the assistance of any of the other staff members. Dr A then remained with the Patient for the remainder of the evening, well past the conclusion of his shift, in order to ensure that the Patient was safe and was appropriately cared for.

Environment in which incident occurred

376 The lighting at Bed 8 where the incident occurred was dim and the applicant's use of the pillow happened quickly, lasting no more than about 10 seconds. One scenario that cannot be discounted is that Dr A sought to use the pillow not with any violent intent, but as a spit shield and in the dim light and the speed with which the incident occurred, the witnesses believed Dr A was forcefully applying the pillow to the Patient's face. What may have confused the witnesses was that the Patient's face did come into contact with the pillow because he was violently moving about and "lunging", but that the contact was not a deliberate use of force by Dr A.

Risk assessment by Head of Emergency Department

377 The Head of the Emergency Department, Dr G, conducted a risk assessment in the days after the incident. That risk assessment was conducted at a time before Dr A had any opportunity to give his version of events, but at a time after the various AIMS incident reports had been lodged by Dr C, RN1 and RN2. Dr G concluded that the risks arising from the incident could be managed internally, without the need to terminate or suspend the employment of Dr A.

378 Notwithstanding the risk assessment, the recommendation by Dr G as to how the matter was to be managed was overruled. One cannot be critical about that because it was not Dr G's responsibility to deal with serious disciplinary issues at the Hospital. Nevertheless, that the Head of the Emergency Department considered any risks arising from the incident could be managed internally, and did not warrant termination of employment, is a matter to be weighed in the balance.

Medical Council investigation

379 I mentioned earlier that the respondent had referred Dr A's conduct to the Medical Council. The Medical Council conducted its own review and determined that there were no "ongoing concerns" about the applicant's professional conduct.

380 I should make it clear, however, that I do not rely in any way on the outcome of the Medical Council's review. The conduct of that review cannot, with respect, be compared to the thoroughness and extent of the adversarial proceedings before this Commission and it provides no assistance in determining whether the threatened dismissal of the applicant is harsh, unreasonable or unjust.

Whether threatened dismissal is harsh, unreasonable or unjust

381 Given that I am not satisfied the respondent has discharged its onus of proving either Allegation One or Allegation Two, I consider it is unreasonable (as distinct from unjust) for the respondent to threaten to dismiss the applicant.

382 I do consider the applicant used the pillow inappropriately as a spit shield, which was an affront to the Patient's dignity and disrespectful, although the respondent did not prove the Patient's safety was in jeopardy. I also consider the applicant engaged in poor decision making in his approach to managing the Patient and in his failure to carry out any risk assessment. The applicant's non-communicative attitude to the other staff also left a good deal to be desired from an experienced medical practitioner operating in an environment where collaboration and cooperation are essential.

383 These matters, however, do not justify a threat to dismiss. The appropriate course is counselling and monitoring of the applicant's conduct as proposed by the Head of Emergency Medicine at the Hospital.

384 I also consider a threat to dismiss that manifests into an actual dismissal would be harsh given that I am unable to find that Allegations One and Two have been made out. A dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted: Byrne & Anor v Australian Airlines.

385 If the applicant was dismissed, it is unlikely that he would be in a position to complete his specialist emergency medicine training and complete his examinations for that purpose. These consequences would be harsh and are disproportionate given my findings in this matter.

386 The respondent contended that there was no evidentiary foundation for the proposition that the applicant would find it very difficult to obtain another job as an Advanced Trainee in Emergency Medicine and complete his Fellowship. The evidentiary foundation is the affidavit evidence of the applicant. I am prepared to accept that evidence.

387 The respondent accepted that Dr A's career would be "damaged" by his termination, although it did not venture any view as to the extent of that damage. In my opinion, it would be severe.

Return to the Hospital

388 The Chief Executive's evidence was that the employment relationship with Dr A had irretrievably broken down and could not be repaired. He said the Health District had no confidence in Dr A because of the conduct he engaged in on 25 May 2013 and because of his reaction to the incident.

389 Given my findings in this matter there is no basis upon which the Health District can have no confidence in Dr A. There was no other evidence that the applicant could not return to the ED at the Hospital or that the position he held is no longer available.

Conclusion

390 As I said earlier, this has not been an easy matter to determine. The respondent's case was not one without any foundation and the applicant's evidence in a number of respects was unreliable and/or outweighed by the respondent's evidence. But in order to accept the respondent's case it is necessary that I "feel an actual persuasion" or a state of "comfortable satisfaction" that the respondent is correct. I do not consider either of those tests has been met.

391 I have considered whether my finding that the respondent has not proven the pillow was forcefully applied to the patient's face is "glaringly improbable" or "contrary to compelling inferences": see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]. Having carefully considered the respondent's evidence in that respect I believe my finding is correct.

Costs

392 The applicant has sought to be heard on costs. Within 14 days of the date of this decision the applicant shall file and serve written submissions on costs. The respondent has a further 14 days in which to reply. Unless a party seeks to be heard orally, the question of costs will be determined on the papers.

Orders

393 The Commission makes the following orders:

(1) The Health District shall not dismiss Dr A from his employment in accordance with its present threat to do so.

(2) Within 14 days of the date of this decision the applicant shall file and serve written submissions on costs. The respondent has a further 14 days in which to reply. Unless a party seeks to be heard orally, the question of costs will be determined on the papers.

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Decision last updated: 26 September 2014