Industrial Relations Commission of New South Wales CITATION : Nicholls and Central Sydney Area Health Service [2000] NSWIRComm 161 APPLICANT PARTIES : Carmel Veronica Nicholls RESPONDENT Central Sydney Area Health Service FILE NUMBER: 4131 of 1999 CORAM: Sams DP Termination of employment - whether dismissal harsh, unreasonable or unjust - incorrect drug administered to seventeen hospital patients - allegations of misconduct against registered nurse - procedural fairness - unrepresented litigant - principles considered. CATCHWORDS : Held, allegations not disputed - respondent's investigation thorough and exhaustive - applicant not denied procedural fairness - dismissal not disproportionate to conduct - dismissal not harsh, unreasonable or unjust - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Earl Lee Roy Green and Michael P Mitry (unreported) Sams DP, Matter IRC2302 of 1999, 7 October 1999 Erica Banic v Eva Cheung (unreported) Sams DP, Matter IRC5396 of 1998, 17 November 1998 Davidson v Aboriginal and Islander Child Care Agency (Ross VP, Watson SDP, Eames C) Print Q0784, 12 May 1998 Regina v Gidley, 3 NSWLR 168 Regina v Zorad, 19 NSWLR 91 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 CASES CITED : Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1 Davis & Anor v General Transport (1967) 67 AR 371 Parker v Capitol Painters & Decorators Pty Ltd, 68 IR 100 at 104 Bankstown City Council v Paris (1999) 93 IR 209 Byrne & Anor v Australian Airlines (1995) 85 CLR 410 Outboard World Ltd v Muir (1993) 51 IR 167 Police Association of New South Wales on behalf of Adam Tregonning and New South Wales Police Service, (unreported) Sams DP, Matter 2799 of 1999, 8 March 2000 Herson v One.Tel, (unreported) Sams DP, Matter 5181 of 1998, 18 February 2000 HEARING DATES: 05/03/2000; 05/04/2000; 05/05/2000 DATE OF JUDGMENT: 08/25/2000 APPLICANT: Ms C Nicholls, unrepresented RESPONDENT: LEGAL REPRESENTATIVES: Mr D Inverarity, of Counsel with Dr G Stewart, Director of Health Services, Central Sydney Area Health Service JUDGMENT: - 35 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 25 August 2000 Matter No IRC99/4131 CARMEL VERONICA NICHOLLS AND CENTRAL SYDNEY AREA HEALTH SERVICE Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 This is an application, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"), filed by Carmel Veronica Nicholls ("the applicant"), seeking reinstatement to her position as a registered nurse employed by Central Sydney Area Health Service ("the respondent"). The applicant was dismissed on 22 July 1999 following the investigation of an incident at the Canterbury Hospital in which at least seventeen patients were injected with an incorrect toxic substance and which resulted in serious illness to all of them. 2 The specifics of the allegations and the findings of the investigation are identified in the termination letter of 22 July 1999, under the hand of Dr Greg Stewart, Director of Health Services: 1 Your failure to recognise and take appropriate action about the potential dangers of the use of "Phenol (10%) in 60% Conray 280". 2 Your failure to follow hospital procedure in drawing up the substance without an appropriate check being undertaken with the scout nurse. 3 Your failure to follow hospital procedure in not checking with Dr Daskalopoulos what substance was being injected by you during ERCP procedures. 4 Your use of the substance without proper checking with Dr Daskalopoulos despite it clearly being labelled "Use Under Strict Medical Supervision - Caustic Substance". 3 The application, filed on 3 August 1999, was listed for directions and conciliation on 27 August. Despite being a member of the NSW Nurses' Association, the applicant was represented by Mr J Antonenas (Solicitor); with Mr D Inverarity of Counsel representing the respondent Area Health Service. 4 After directing the parties to confer, I was advised that no settlement could be reached; the applicant maintaining her claim for reinstatement and the respondent refusing to concede any unfairness in the decision to dismiss the applicant or in the process leading up to dismissal. Accordingly, pursuant to s87 of the Act, I set the matter for hearing and issued directions for the filing and service of affidavit material. 5 A failure by the applicant to comply with these directions resulted in a further directions hearing on 15 November. My earlier directions were amended and new hearing dates set in early May 2000. 6 However, a further directions hearing was called on at the request of the respondent on 26 April 2000. Mr Inverarity sought a later start to the first day of hearing because of proceedings involving himself and the respondent in another jurisdiction. The applicant now appeared for herself as Mr Antonenas had filed a notice of ceasing to act on 31 March 2000. The Commission agreed to the later start on the undertaking that it was likely the case would finish in the two and a half days set aside. Agreed Matters 7 In order to set the factual matrix to this application, I am able to distil from the voluminous and detailed material provided, the following summary of agreed matters: 1) The applicant is a trained nurse of twenty-three years' experience. 2) She was employed by the Central Area Health Service at Canterbury Hospital for nine years. 3) In the last four years the applicant was the instrument nurse for various endoscopic procedures. 4) From January to June 1999 the applicant worked exclusively in the operating theatre assisting in endoscopic procedures. 5) At the time of dismissal, the applicant was part-time, working about eighteen hours per week. 6) Between 22 March and 7 June 1999 at least seventeen patients upon whom Endoscopic Retrograde Cholangio-pancreatography (ERCP) procedures had been performed, were injected with an incorrect and caustic substance (Phenol 10% with 60% Conray 280). 7) The applicant was the instrument nurse for twenty-five or twenty-six of the twenty-eight ERCP procedures which injected the incorrect substance. 8) On 7 June, Dr Daskalopoulos, the doctor in charge, discovered that the incorrect substance had been used after being alerted to it by a junior nurse. 9) An internal investigation into the incident was conducted over four weeks from 9 June. (For convenience, I shall refer to the series of incorrect procedures as a single incident). 10) During the investigation, all staff associated with the procedures were interviewed, including three instrument nurses who were involved in the balance of the twenty eight procedures. Dr Daskalopoulos was suspended from service as a Visiting Medical Officer to the hospital. 11) A separate investigation was conducted by the Health Care Complaints Commission. 12) The applicant was initially interviewed on 8 June. 13) The applicant attended interviews on 10 June and 16 June in the company of her lawyer. The meetings were conducted by Dr Greg Stewart, Director of Health Services and the Director of Nursing, Adjunct Professor Joan Englert. 14) After the 16 June meeting the applicant was suspended with pay pending a full investigation. On 17 June the applicant received a letter outlining the reasons for her suspension. This letter is to confirm my verbal advice to you today that, pending the finalisation of the Area's review of the recent incident at Canterbury Hospital involving ERCP procedures, you will be suspended from duty on pay, commencing immediately. The decision to suspend you on pay, pending the outcome of the review, has been taken given the serious nature of the incident and on the basis of the following allegations against you. 1 Your failure to recognise and take appropriate action about the potential dangers of the use of "Phenol (10%) in 60% Conray 280". 2 Your failure to follow hospital procedure in drawing up the substance without an appropriate check being undertaken with the scout nurse. 3 Your failure to follow hospital procedure in not checking with Dr Daskalopoulos what substance was being injected by you during ERCP procedures. 4 Your use of the substance without proper checking with Dr Daskalopoulos despite it clearly being labelled "Use Under Strict Medical Supervision - Caustic Substance". I would appreciate your response to the allegations referred to above by Tuesday, 22 June 1999. When the Area's review is finalised, I would like to meet again with you and your legal representative to discuss:- 1. the findings of the review. 2. your response to the allegations detailed in points 1-4 above and 3. any possible implications for you in relation to your employment. Any decision that may affect your continuing employment with Canterbury Hospital will be taken having regard to the outcome of the review, your response to the above allegations and your employment record. 15) The applicant was requested to attend a further meeting on 22 July - but she declined. 16) The applicant was dismissed by letter dated 22 July 1999. 17) The Executive Summary from the Area Health Service investigation was dated October 1999 and is as follows: This review has confirmed a breach in patient safety at Canterbury Hospital, caused by a series of errors, both systemic and individual. Despite ten possible check points in the process by which Phenol (10%) in 60% Conray 280 was ordered, supplied and used in Canterbury Hospital Operating Theatres during Endoscopic Retrograde Cholangio-pancreatography (ERCP) procedures, an incorrect and caustic substance was used instead of the correct contrast medium for almost three months. After an examination of the use of Phenol (10%) in 60% Conray 280 at Canterbury Hospital during the period 1 February, 1999 to 7 June, 1999, we have concluded that at least 17 patients were injected with this substance instead of the correct contrast medium. It is impossible to be exact about the number of patients affected by this incident because of uncertainties about when it was first used and whether it was used in all procedures after its first recorded use. The probable first use was on 22 March, 1999 and it is likely that it was used for all ERCPs after that date. Most of the affected patients continue to experience complications and ill health. In the opinion of the reviewers, the major breach was non-compliance with hospital policy and procedure which required that all substances used intra-operatively be checked with the doctor performing the procedure. Nevertheless, there are nine other points at which system checking mechanisms might have led to a questioning of the ordering, supply and use of this substance. At some points, there was a failure to put in place systems to minimise error, at others there was failure by individual practitioners to recognise and act upon clear warning labels and potentially dangerous situations. The first error was a system error in the pharmaceutical supply computer which led a recently appointed Pharmacy Clerk to order the wrong contrast medium. This mis-ordering was not identified at any of the nine other check points in the supply and use of this substance, despite the involvement of numerous health professionals. Another important aspect of the incident was that Canterbury Hospital's incident reporting system did not identify a large cluster of patients suffering adverse outcomes after the same procedure. A system for "facilitated incident monitoring" is urgently required, both for facilities in CSAHS and for the health system as a whole. As a consequence of this incident, the employment of one nurse was terminated and the appointment of the involved Visiting Medical Practitioner was suspended. The nurse has appealed against the termination and the case is scheduled to be heard in the NSW Industrial Relations Commission in December, 1999. The doctor has appealed against his suspension under Section 106 of the Health Services Act, 1997. The Health Care Complaints Commission has referred the findings and outcome of its investigation of this matter to the NSW Nurses Registration Board and the NSW Medical Board, so that the Boards can review the involvement of four nurses and the doctor. A series of recommendations has been made which addresses both the systemic and individual issues identified in this report. The Applicant's Evidence 8 The documentary evidence filed by the applicant was not in proper form. It was more in the nature of submissions, rather than evidence. Nevertheless, I am able to broadly summarise her position as follows: 1) At no time was she aware of the contents of the vial containing the offending substance. She believed a change in bottling was a replacement for the correct substance. 2) Nursing and other staff (numbering some twenty-three) were in, and around, the operating theatre and recovery room where the offending substance was located. Theatre staff included radiographer, anaesthetist, anaesthetic nurse, instrument nurse, scout nurse and doctor. None of these staff noticed the changed drug. 3) The theatre staff believed that the pharmacy was run by a pharmacist who should have known what was being sent. 4) There was a complete systems failure for which the applicant could not be held responsible. 5) The hospital failed to appropriately train the staff to recognise the incorrect substance. This was substantiated by the inservice training seminar held on 29 July 1999. 6) The applicant provided four professional references from: Dr P T Tornya CNS Aaron Wang St Vincents Hospital Nursing Unit Manager, Karina Short Bankstown Private Hospital 7) The applicant was blamed for using the wrong substance on a day she was not at work. 8) Canterbury Hospital's Drug Committee had not approved the use of the offending drug 10% Phenol in 60% Conray. The Drug Committee had not communicated, throughout the hospital, the affect of this drug. 9) The applicant had made inquiries about the smaller sized vials. These inquiries were not followed up. 10) The investigation found that there were both systemic and individual error for which she was the only employee held responsible. This was unfair. 9 More helpful to my consideration of this matter, was the applicant's oral evidence. 10 The applicant was questioned as to her performance appraisal in December 1997 and agreed that she had gained experience in endoscopic procedures, practices and standards. She agreed she was a skilled endoscopic nurse, involved in endoscopic procedures and equipment. While signing the appraisal which disclosed she imparted her knowledge to others, she now gave evidence that she did not do so. 11 The applicant gave evidence that she had attended various courses on the professional conduct of nurses in theatre, and specifically on endoscopy. She agreed she had been trained in the administering of drugs through cannulas and by other means. 12 The applicant was asked if she had received copies of the interviews conducted by Dr Stewart on 10 and 16 June. She said that she had not received them at the time, but had seen the records of interview in the last few weeks. 13 The applicant described the various staff present in theatre during an ERCP procedure and the functions of the nurses in preparing and injecting the contrast medium. She was shown the Statement of Duties of a Registered Nurse (annexure B to Ex'E') and agreed that one of the nurse's functions was to "uphold area, hospital, nursing and departmental practices and policies" (4.1). She had acknowledged - by signing it - that she had read the job description, understood its requirements, and agreed to fulfil its functions. 14 She acknowledged the specific functions of an instrument nurse as including: Collect appropriate drugs used for the procedure at the onset of this list. Draws up required amount specified by performing Medical Officer. Vials are retained for Medical Officer's viewing. 15 The applicant also acknowledged various sections of the Australian Confederation of Operating Room Nurses (ACORN) Standards. 16 The applicant conceded that, in the period from February to June 1999, she had been the instrument nurse in twenty-five of the twenty-eight incorrect procedures. She described her role in these procedures which included reading the entire label to the scout nurse (T.p50). The applicant gave evidence that there was no protocol, or document, as far as cannula entries were concerned. 17 The applicant was shown a policy for the administration, via all routes, of medications and agreed (although it wasn't specific) it covered the procedure for cannula entry. She said that she checked with the scout nurse on every occasion, but then said "I can't remember; but I assumed I did". The applicant suggested that the correct policy was that applying to intravenous injection. She then acknowledged that ERCPs do not involve intravenous procedures (T.p61-p63). 18 In the absence of a prescription, the procedure for administering a particular contrast medium is to consult the Medical Officer. The applicant said "at times" she did show the vial to Dr Daskalopoulos, or to another nurse. When she showed the vial to the Doctor, he looked at it, but she didn't know if he read the label. In closer questioning, as to the twenty-five offending procedures, she said that the vials were always available, but she couldn't recall showing the doctor on any of the occasions. She recanted this evidence a few minutes later to say she did show him the vial at various times. Finally, in answer to this question "the reason you did not show Dr Daskalopoulos the vial is because he trusted you?" the applicant answered "it seems to be that way, yes" (T.p58). 19 This evidence conflicted with what she said at the 10 June interview "Ms Nicholls stated that her standard practice, when administering a drug/fluid intra-operatively is to show the empty vial/bottle to the surgeon" (p2 of annexure B to Ex'J'). 20 The applicant was shown the Guidelines for Handling Medication in New South Wales Public Hospitals (annexure H to Ex'E') and in particular 6.4.1: No person employed at a hospital is to administer any medication to any patient in the hospital other than on the prior written authorisation of a medical officer or dentist, with the exception of those situations as given in 5.2, 5.3 ( standing orders, emergency telephone orders ) and in 6.4.8 (" nurse-initiated medication "). Clauses 51, 100 Poisons Regulation 1994. Refer to Section 5.1 regarding the particulars required to be entered by the prescriber on the medication chart. She said she agreed with this policy. She acknowledged that the instrument nurse obtains the drug, administers it and records it on the suite nurses' report. The report for every ERCP procedure is signed off by the surgeon, the instrument nurse and the scout nurse. She was shown a report of 29 March 1999 (Ex'B'), This report indicates that the medication administered was incorrectly recorded as "Conray 280" when, in fact, it was "Phenol 10% in 60% Conray 280". 21 The applicant disagreed with the proposition put by Mr Inverarity that she had fallen below a standard expected of an instrument nurse by not showing the doctor the medication, or the empty vial, in the absence of a signed standing order or prescription. 22 She could not recall showing the doctor the vial, nor did she mention it contained a "caustic substance". She didn't know the affect of the substance. She acknowledged there had been a change in dyes, with marked differences in size and labelling. She didn't check with the doctor because she trusted the pharmacy, and had checked with the scout nurses (T.p73). She said that she read the label to the scout nurse on every occasion, unyet if she did the scout nurse wrote "Conray 280" and not "Phenol 10% in 60% Conray 280". She agreed with Mr Inverarity that she had signed a form (Ex'B') which was incorrect (T.p75). 23 The applicant was asked about the procedure on 7 June when the mistake had been discovered by Nurse Scandrett, who had said that this was the solution we have been told to use by the pharmacy. Nurse Scandrett did not check with the applicant, nor she with her. 24 It was suggested to the applicant that the doctor's reaction when he found out what was being injected, is consistent with his first knowledge of it. She agreed "it must have been". 25 The applicant was referred to the interview response of Instrument Nurse Toni George, who was in attendance during one of the offending procedures in which the applicant was Team Leader. The applicant was asked and could not recall the exchange between the two of them. RN George had read out the words "Phenol 10% in 60% Conray 280" and queried the word "caustic". The applicant had replied "it's in Conray 280", believing it was a replacement. She gave evidence that RN Rona Naicker had told her in March 1999 it was a replacement from pharmacy and had used the words "it's phenol in Conray" (T.p85). It sat in the drug cabinet for some months until existing supplies of Conray 280 ran out. 26 The applicant was asked about the statement of Scout Nurse Christine Wong (annexure I to Ex'J') in which Nurse Wong questioned the applicant about the use of a different drug labelled with Phenol. The applicant told her it was the contrast medium now being used. Nurse Wong took the matter no further. 27 The applicant gave evidence that she did not consult a doctor, or the pharmacy about the drug. She said Clinical Nurse Educator Naicker was to check with pharmacy after she had said to her "Is this the right dye to use, this is Phenol 10% in Conray 280?" (Annexure C to Ex'J' - Tp88). She had also spoken to Nurse Megan Thomas about the size of the vials. 28 Exhibits 'C' and 'D', being actual vials of Conray 280 and Phenol 10% in 60% Conray 280 respectively, were tendered during the applicant's cross examination. The applicant gave evidence she would normally just read the product and its expiry date and not the words "caustic substance, use under strict medical supervision". She subsequently said she was unsure if she read these words. 29 When asked if she knew the effect of a caustic substance being injected into the bile duct, the applicant said she did not know at the time. She also gave evidence that she didn't consider the words "under strict medical supervision", meant she had to show the doctor. 30 In response to the affidavit evidence of Nurse Naicker, the applicant said she spoke to her about the contents of the vial, not only about its smaller size (T.p94-95). 31 The applicant was asked about the interviews held on 8 and 10 June. On 10 June, she agreed that she was accompanied by her solicitor and she provided written statements to the meeting. Although she didn't want to go to the meeting, she agreed that she was given every opportunity to put whatever she wanted in regard to the incident. 32 In respect to the meeting of 16 June, where the applicant was suspended, she agreed that the reasons were told to her and confirmed in writing. She was asked to respond to each of the allegations. Further, the hospital would like to meet her again to discuss the response and the wider review. The hospital also told her it would take into account her employment record. She declined to attend for the final interview on 22 July as her lawyer was unavailable. She had not asked Dr Stewart to postpone the meeting until her lawyer could be present. 33 The applicant was asked about the claim in her application that she was told that she was the only person at fault, and sacked on the spot. She conceded that it wasn't Dr Stewart who told her this, but she would not reveal who did. She later indicated she would not rely on this statement. 34 Finally, the applicant said she had no confidence in the hospital administration and that she had done nothing wrong in respect to the incident. It was a systems failure. The Respondent's Evidence 35 Mr Inverarity called evidence from: Joan Lillian Englert Director of Nursing Services Dr Gregory Stewart Director of Health Services Rona Naicker Clinical Nurse Educator Megan Thomas Registered Nurse 36 Ms Joan Englert has been the Director of Nursing Services for over six years. Her duties include co-ordination of nursing services throughout the Area Health Service and ensuring the provision of high quality nursing care. Ms Englert was appointed to the steering committee which investigated the incident. 37 Attached to her affidavit were various relevant documents: Job Descriptions signed by the applicant in 1994 and 1997 Australian Confederation of Operating Room Standards (ACORN) Policy: Medications - Administration via all Routes 38 In her affidavit, Ex'E', she gave evidence of the various roles of the operating theatre team during an ERCP procedure: a) Medical - Medical Officer (Gastroenterologist/Endoscopist). The Medical Officer is responsible for the operation or procedure and is in charge of the patient and the treatment and care being delivered by the Operating Theatre team. b) Nursing - Instrument Nurse. The Instrument Nurse is the main assistant to the Medical Officer. The injection of the contrast medium into the patient is the responsibility of the Instrument Nurse. This is the case because the doctor is fully occupied controlling the endoscope and cannulating the common bile duct and/or pancreatic duct. Timing of the injection is determined by the doctor and Instrument Nurse injects the contrast medium when so directed. c) Nursing - Scout/Circulating Nurse. The Scout Nurse assists the Instrument Nurse. d) Nursing - Anaesthetic Nurse. The Anaesthetic Nurse is responsible for the anaesthetic needs of the patient in conjunction with the Anaesthetist. 39 Ms Englert gave evidence that in order for the ACORN standards to be complied with, it is critical for an instrument nurse to display competence, knowledge and skill in the procedure being undertaken. This includes: - standards of peri-operative practice; - medico-legal requirements; and - the specific operating suite. 40 Ms Englert gave evidence that, in her opinion, the applicant fell below the standard expected of an Instrument Nurse for the following reasons: a) In the absence of a signed standing order/prescription from the Medical Officer, the medication should not have been administered without first checking with the Medical Officer responsible for the procedure; b) The label on the Phenol (10%) in 60% Conray 280 stated "Use Under Strict Medical Supervision - Caustic Substance". This was not checked or shown to the Medical Officer. c) The vial containing Phenol (10%) in 60% Conray 280 was markedly different from the vial containing Conray 280. This was not raised with the Medical officer. d) The applicant should have been aware of the potential dangers in the use of Phenol (10%) in 60% Conray 280. In any event, if the Applicant was unsure of the effect of Phenol, the Applicant should have asked the Medical Officer. This is another reason why the checking mechanism is in place. e) An inappropriate check of the drug was performed with the Scout Nurse. I was present during interviews when Scout Nurses involved in the procedure advised that they raised the issue of the substance being a "caustic substance" but were told by the Applicant that it was the correct product. There were other Scout Nurses who indicated that the substance was never checked at all. In any event, the Instrument Nurse (aside form(sic) the Medical Officer) is ultimately responsible for the injection of the medication into the patient. It is the Instrument Nurse's responsibility (together with the Medical Officer) to ensure the correct medication is being administered. f) The Applicant did not raise with other members of the Operating theatre staff any concern about the product being administered. To the best of my knowledge, she only raised the size of the vial being used, not its contents. 41 Further, she said if the correct checking of drugs had been followed, the offending drug would have been identified at the point of administration, and not administered. 42 Unfortunately, much of the cross examination of Ms Englert by the applicant (and all of the other respondent witnesses) was irrelevant. I shall, nevertheless, summarise the salient points: i) the investigation conducted interviews of all the nurses involved in the ERCP procedures from February to June 1999; ii) without a prescription or a signed standing order, the nurse should check with the doctor as to the drugs to be administered; iii) the policy on the administration of medication is a very clear procedure; iv) the most important time of checking is at the point of administration; v) the scout nurse should check with the instrument nurse, who should check with the doctor; vi) individuals should maintain their competence in new drugs when they are first introduced. If there is some doubt, they should ask; vii) new drugs are approved for use by the hospital's drug committee and up to date information circulated; but the offending drug was not a new drug, as it is used for other procedures. viii) after the investigation, a special nurse education session was held to promote the importance of checking; 43 Dr Gregory Stewart is the Director of Health Services for Central Sydney Area Health Service. In his affidavit, Ex'J', Dr Stewart gave detailed evidence of what occurs in ERCP procedures. He described the differences between the vials containing Conray 280 and Phenol (10%) in 60% Conray 280: CONRAY 280 PHENOL (10%) IN 60% CONRAY 280 20 mls 5 mls clear opaque brown the colour of the label was light blue print on white the colour of the label was black print on white not labelled as a caustic substance to be used under strict medical supervision labelled Phenol (10%) in 60% Conray 280 and Use Under Strict Medical Supervision - Caustic Substance supplied in plain white boxes with an identification label identical to that on the vial 44 It is instructive to reproduce the photograph of the two vials (annexure A-Ex'J'). 45 As to the investigation, Dr Stewart said both the Health Care Complaints Commission and an internal review were conducted. All staff involved were interviewed, including four nurses recorded as the instrument nurse for twenty-eight ERCP procedures during 1 February to 7 June 1999. 46 The applicant was the instrument nurse for twenty-five or twenty-six of these procedures. The three other nurses, each involved on a single occasion, were cleared by the inquiry for the following reasons: 8 February - sufficient stock of Conray 280 was available for the reviewers to be satisfied of the nurse's claim that she had a clear recollection of using plain Conray 280 in a 20 ml vial. 22 March - the instrument nurse recorded as on duty could not recall being an instrument nurse on that day for the procedure and the reviewers were satisfied that she was not. 10 May - the instrument nurse was asked to assist at late notice and the contrast medium had already been drawn up. The scout nurse advised that the contrast has been checked. 47 Dr Stewart said he interviewed the applicant on 10 and 16 June. Interview summaries were made, provided to the applicant and not disputed by her. 48 In respect to the applicant's claim that she had queried the vials of Phenol 10%, Dr Stewart interviewed RN Rona Naicker and RN Megan Thomas. Records of these interviews were also attached to Dr Stewart's affidavit. 49 As a result of the interviews the following conclusions were found: The relevant Scout Nurses had also been interviewed regarding the process for checking the substance prior to injecting it into the patient. At 11 procedures (involving 5 different Scout Nurses) between 22 March 1999 (when it was first recorded as such) and 7 June 1999 the contrast was recorded as Phenol (10%) in 60% Conray 280 or a variation thereof. Four of the five Scout Nurses were interviewed. Two say that they raised with the applicant the fact that the contrast contained phenol or that the label identified the contrast as containing "caustic substance". They were told by the applicant that it was the correct product. One other Scout Nurse raised it with the Applicant on 7 June 1999 (the day the mistake was discovered) after the ERCP procedure. Annexed and marked "I" is a statement prepared by one of these Scout Nurses in response to a letter from me (dated 18 June 1999 also annexed) seeking information about her role in ERCP procedures, and the interview records with the two other Scout Nurses. It was also established that the Applicant was always the person who injected the substance into the patients. In addition, interviews with two other Scout Nurses indicated that the correct procedure, by which the Instrument Nurse checks with the Scout Nurse the contrast medium to be injected, had not been followed at all. Annexed and marked "J" are interview records with these two Scout Nurses. Did not investigate further on the basis that the Applicant had conceded that she had not shown the vials to Dr Daskalopolous. The Applicant is an experienced Instrument Nurse involved with the ERCP procedure for a period of 4 years at the Hospital. It was conceded by the Applicant that neither the substance nor the vial was shown to Dr Daskalopolous. This does not constitute a use of the substance "under strict medical supervision". 50 The applicant was asked to attend an interview on 22 July. However, she declined. The applicant was dismissed on this day after the respondent took into account her responses, the interviews and her record of employment. 51 In par 40 of Ex'J' Dr Stewart summarised the reason for dismissal: The Applicant is a nurse with 23 years standing. The last 4 years, the Applicant has been performing ERCP procedures at the Hospital. Despite that length of service she committed a fundamental error that contributed (in no small part) to at least 17 patients being injected with an incorrect contrast medium. This has resulted in those people experiencing serious ongoing difficulties. In the termination letter to the Applicant the Respondent said: The Area is not satisfied with your explanation regarding your involvement in the recent incident at Canterbury Hospital. The Area has no confidence in your ability to perform your duties in future in accordance with appropriate standards. 52 He concluded by saying that it would be impractical to reinstate the applicant as the respondent has no confidence in her. 53 A copy of the internal review report with seventeen appendices was attached to Dr Stewart's affidavit. 54 In oral evidence, Dr Stewart described the role of the Drug Committee in a hospital. Recommendations for the use of a new drug require Area Health approval. If a drug is already in use, but not at a particular hospital, the local Drug Committee can approve its use. The drug Phenol (10%) in 60% Conray 280 did not require local approval, because it was already in use across the Area Health Service. 55 Dr Stewart explained the nature of the review and the twenty recommendations which went to reorganisation, new documentation and computer systems and training. The review identified there were ten points where various people ordered, issued, supplied and administered the drug. However, he said the major breach was the checking mechanism between the instrument nurse and the doctor at the point of injection. As a result of the investigation, the doctor had been suspended from practice at Canterbury Hospital and is the subject of a complaint to the Medical Tribunal. 56 Dr Stewart was asked if the applicant, and the other nurses, should have known about the drug. He said that a number of scout nurses interviewed said that the applicant told them it was okay and, as she was the experienced endoscopic sister, they had not questioned her assurances. Dr Stewart agreed that the hospital was responsible for training. He did not accept that the staff were not properly trained. 57 RN Rona Naicker is a clinical nurse educator and was Acting Nurse unit Manager - Operating Theatres during February to June 1999; although not involved in any of the ERCP procedures. Her affidavit evidence (Ex'F') related to a conversation had with the applicant in mid March 1999 in which the applicant complained as to the small vials. Ms Naicker said she would follow it up with pharmacy and asked RN Megan Thomas to do so. The same day, RN Thomas reported to her that pharmacy had said "that's what the company is supplying". 58 Ms Naicker said she had no other conversations with the applicant about the vials and the applicant did not show her the vials, or mention the word "Phenol". 59 In oral evidence, Ms Naicker said although she had a heavy workload at the time, she could be definite that no mention was made to her of a change in the drug. 60 RN Megan Thomas corroborated the conversation referred to by RN Naicker although she placed the conversation in mid April (par 7 - Ex'G'). She further added that she was not aware of a change from Conray 280 to Phenol (10%) in 60% Conray 280 and upon checking the imprest order form which stated 'Conray 280' she had no reason to believe that there was anything different in it. RN Thomas was asked about a note in a desk diary which said: To all, Conray 280 can only be ordered in 5 ml vials. Pharmacy can no longer get 20 ml vials. Megan 61 The date of the page entry is June 11, but as can be seen from dated notes on the next day's entry - June 12 - various staff made notes dated in April. It is apparent from this evidence, that the desk diary was a note pad, rather than a record of when notes were made. 62 The applicant was re-called by Mr Inverarity to be asked questions as to her employment after dismissal. In view of my later findings, it is unnecessary for me to take this evidence any further. SUBMISSIONS 63 The applicant made a very short statement in which she accused the respondent, and its systems, of being responsible for the incident. She and the other staff had not the "slightest idea that everything was going wrong" (T.p145). 64 For the respondent, Mr Inverarity's submission may be summarised as follows: 1) the applicant was dismissed as a result of a very serious incident in which seventeen patients became very ill after being injected with an incorrect contrast medium; 2) when shown the vial on 7 June, the doctor responded immediately. This was evidence that, up to that time, he had not been shown the vial by the applicant; 3) the applicant was the instrument nurse for twenty-five, possibly twenty-six of the twenty-eight incorrect procedures. She had twenty-three years nursing experience - the last four exclusively in endoscopic procedures. She had obtained a high level of competence and imparted her knowledge to others; 4) there is no denying that systems problems were also found to exist - but the major breach was the failure to check at the very last, most important point of contact between the drug and the patient - the point of administration; 5) there is evidence that the applicant did not check and her own evidence was she couldn't recall. She claimed the vials were available anyway. This explanation is not good enough; 6) the two vials could not be more manifestly different in size, look and labelling. It was extraordinary that a nurse of twenty three years standing would not notice the difference; 7) the applicant criticised the respondent for not telling her what phenol was used for. Her experience should have alerted her. If she had been unsure, she should have asked. It is totally unacceptable for the applicant to suggest that the term " use under strict medical supervision " simply means the doctor must be present; 8) the applicant's evidence as to whether she checked with the scout nurses is unreliable. It was unclear if she had read out the full description on the label; 9) the applicant knew phenol was in the drug; but relied on its safety from the pharmacy; 10) the applicant conceded that the hospital's policies were available and she knew about them; 11) the applicant did not check the actual drug with RN Naicker, merely the size of the vial. Ms Naicker's evidence should be preferred, as it is corroborated by RN Thomas; 12) The investigation of the incident was thorough and exhaustive - the applicant was interviewed in the company of her lawyer; she was provided with every opportunity to defend herself, given specific reasons for her suspension and subsequent dismissal. Her record of employment was taken into account; 13) reinstatement would be impractical, as the employer could not be confident that its standards and procedures would be followed; 14) the applicant refuses to acknowledge any blame for the incident. She says it was not her fault in any way, shape or form. Mr Inverarity submitted that this cannot be correct on a proper assessment of the evidence; 15) the applicant has mitigated her loss; 16) as an unrepresented applicant, she was given appropriate and ample opportunity to put all she wished in the proceedings. See Green and Mitry, Sams DP, Matter IRC2302 of 1999, 7 October 1999 and Banic and Cheung, Sams DP, Matter IRC5396 of 1998, 17 November 1999; 17) the dismissal was not harsh, unjust or unreasonable and the application should be dismissed. 65 In reply, the applicant said she was not the only instrument nurse involved. She had a good employment record. It was the pharmacist who was largely to blame. She had checked with Nurse Naicker, but nothing was done. CONSIDERATION The Unrepresented Litigant 66 This case has not been without its difficulties. Not least of which was the applicant's emotional, all consuming belief that she had done no wrong. Representing herself, resulted in this passionate belief completely overwhelming a rational approach to her case. She looked for every minute and irrelevant crack in the respondent's case and made sweeping accusations and inferences that had absolutely no basis in the evidence. One glaring example bears repeating. In her application she says that she was told she was the only person who was at fault and was sacked on the spot. This is just not true. She wasn't sacked on the spot. There had been a thorough and exhaustive inquiry. She had been interviewed on three occasions and she had responded with a detailed (but largely irrelevant) defence. 67 Further, in oral evidence, she conceded that it wasn't Dr Stewart who told her she was the only person at fault. When pressed to say who, she refused (T.p103). I am convinced no one said anything like what she claimed. She made this conversation up. 68 Sadly, this case starkly demonstrated one of the major problems with cases involving unrepresented parties; namely, that such parties are usually so emotionally and subjectively involved that a rational and dispassionate approach to preparing for, and conducting a proper case, is all but a forlorn hope. 69 I note that the applicant was said to have been a member of the Nurses' Association. She was represented by a solicitor (her sister-in-law) at the interviews prior to dismissal and was represented in the conciliation proceedings by a different solicitor who subsequently ceased to act. It is curious, that despite this history of representation, when she needed it most, she chose to be unrepresented. Unfortunately, and despite the Commission's entreaty to her to seek representation, she chose not to do so. 70 Towards the end of her oral evidence I, again, invited her to seek representation. She declined, and I said on transcript: We can only do the best we can, but understand at the end of the day persons choose to be unrepresented in the foreknowledge that their case will be taken as it is presented and not as it otherwise might have been. (T.p108) 71 In view of these circumstances, it is appropriate that I should refer to the principles that the Commission should adopt in litigation involving an unrepresented party. The guiding principle is a simple one: "to ensure all parties are afforded the benefits of the rules of natural justice". For a helpful discussion of the term 'natural justice' in the context of an unrepresented litigant see Davidson v Aboriginal & Islander Child Care Agency (Ross VP, Watson SDP and Eames C) Print Q0784, 12 May 1998. 72 While the principle of natural justice might seem simple enough, its application in an intensely emotional and difficult litigation is not always so. It is often a delicate balance involving a number of sensitive issues such as ensuring an unrepresented litigant is aware of his or her rights, ensuring the trial judge does not become an adviser or advocate and ensuring an orderly and sensible conduct of the proceedings. 73 Two authorities are apposite. In Regina v Gidley, 3 NSWLR 168, the Court of Criminal Appeal said: The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should extend those rights or how he should conduct his case. In Regina v Zorad , 19 NSWLR 91, the New South Wales Court of Appeal held that: 1. An accused who elects to be unrepresented is not entitled because of that election to be given any advantage not enjoyed by a represented person. 2. The duty of a trial judge to give an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial: a) would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the question in that form for the accused. b) would include the giving of advice that, notwithstanding a ruling on the voire dire as to the voluntariness of admissions, the accused is permitted to raise the same factual matters before the jury: such advice is necessary to ensure that the unrepresented accused is put in a position where he can make an effective choice as to the exercise of his rights but does not extend to advising him how this may be done. c) would include, where comment was going to be made in relation to the accused's failure to comply with the rule in Browne v Dunn , advice of the existence to that rule. 74 The Commission's obligation to unrepresented parties must always be consistent with the legislative framework in which the Commission operates. The Commission, of course, is guided by the general statutory instruction in Pt 5 of the Act - Procedure and Powers of the Commission. In particular I refer to s162(1): The Commission may, subject to this Act, determine its own procedure. and s163(1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself of any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 75 I would add that where one party is legally represented and the other not, the Commission is often assisted, in ensuring an orderly conduct of proceedings, by the represented party displaying a sensitive and less technical approach than it might otherwise be inclined to take. I would note that despite the temptation, and perhaps even the necessity to do so in order to protect his client, Mr Inverarity displayed considerable restraint and tolerance for which the Commission is grateful. 76 I am satisfied that the applicant was fully aware of her rights under the Act and her obligations in pursuing such rights. I am further satisfied that she put before the Commission all of the material she wished to put and that she was not impeded or restrained in any way from putting her case or responding to the case against her. General Principles 77 This is not a case where the Commission is required to make findings of fact as to the allegations made against the applicant. The applicant did not contest the allegations or deny that she had injected the wrong contrast medium during twenty-five or twenty-six ERCP procedures. However, she refused to acknowledge that she had done anything wrong. Her defence throughout the proceedings was that other people were responsible and the hospital's systems had failed. The recurring question she posed to the Commission was "why should I be the only one sacked?" 78 It follows therefore that there is no requirement for the Commission to consider the usual tests where allegations of misconduct, denied by the employee, are said to be grounds for dismissal. See Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70. 79 The Commission's determination will, in my opinion, be a relatively narrow one; namely, was the applicant's dismissal, taking account of all the circumstances, "harsh, unreasonable or unjust"? The Investigation 80 The applicant made no complaint about the investigation at large, or the investigation and interviews involving herself and Management. Accordingly, considerations of procedural fairness have not been argued and do not arise. I make no concluded findings on such matters. 81 Nevertheless, for completeness, I would make the following observations. During the investigation the applicant: i) was interviewed twice in the company of her solicitor; ii) was afforded an opportunity to attend a third interview, but declined; iii) was aware of the specifics of the allegations; iv) was given every opportunity to respond to the allegations, and did so. 82 Despite making no findings as to the investigation, I am nevertheless convinced that it was a most thorough, rigorous and exhaustive inquiry. No less could have been expected, bearing in mind the public interest generated by the incident, and more importantly, the fact that the lives of seventeen unsuspecting patients were placed at extreme risk through human carelessness and a breakdown in hospital systems. Whether the Dismissal was Harsh, Unreasonable or Unjust 83 I turn now to consider the general principles underpinning the scheme of the Act's unfair dismissal jurisdiction. As a convenient starting point it can be said that there is a long line of settled authority which has considered the principles the Commission should apply when dealing with unfair dismissal applications. For a useful history, see Beahan v Bush Boake Allen Australia Ltd (unreported) Wright P, Walton VP and Hungerford J, Matter IRC621 of 1999, 17 December 1999. 84 The relevant statutory instruction under the 1996 Act, is whether such a dismissal is "harsh, unreasonable or unjust". One can consider the ordinary meaning of these words, how they are applied in an industrial context and how they might be applicable to a particular set of facts and circumstances. It is to be noted that each adjective is capable of discrete interpretation. However, in one elegantly put phrase, the words, when taken together, have been said to be a "tautological trinity", see Davies & Anor v General Transport (1967) 67 AR 371. 85 To demonstrate their independent standing, I refer to the dictionary definition of the terms, from both the Macquarie and Concise Oxford Dictionaries: The Macquarie Dictionary defines the terms thus: HARSH: ungentle and unpleasant in action or effect; UNREASONABLE: not endowed with reason; not guided by reason or good sense; not based on, or in accordance with, reason or sound judgement; UNJUST: not just; not acting justly or fairly, as persons; not in accordance with justice or fairness, as actions. and the Concise Oxford Dictionary records as follows: HARSH: ..repugnant to feelings or judgment; cruel, unfeeling; UNREASONABLE: Not reasonable; going beyond the limits of what is reasonable or equitable; UNJUST: Not just, contrary to justice or fairness. 86 In an industrial context, an oft repeated passage from Byrne & Anor v Australian Airlines (1995) 85 CLR 410 is pertinent: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and 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. 87 In Parker v Capitol Painters & Decorators Pty Ltd, 68 IR 100 at 104, Connor C used not dissimilar expressions: HARSH: too severe, having regard to all the circumstances. UNREASONABLE: immoderate, excessive or extravagant. UNJUST: unfair, inequitable, undeserved or biased. 88 These definitions lead to the next observation: a particular dismissal might be found to fit the definition of only one of the adjectives, two of them or all three. A recent Full Bench authority for this proposition is to be found in Bankstown City Council v Paris (1999) 93 IR 209. The Full Bench said at p212: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specifity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 89 See also Outboard World Ltd v Muir (1993) 51 IR 167 and my discussion in Police Association of New South Wales, on behalf of Adam Tregonning and New South Wales Police Service, (unreported) Matter 2799 of 1999, 8 March 2000, and Herson v One.Tel (unreported) Matter 5181 of 1998, 18 February 2000. 90 I shall apply the aforementioned principles to the particular facts and circumstances disclosed in this case. The Allegations 91 Even if I was to put the best possible gloss on the applicant's case, it would be that she did not follow well known and commonsense procedures to a task which was her responsibility. 92 It seems extraordinary and inexplicable to me, that with her twenty-three years nursing experience - the last four exclusively in endoscopic procedures - that 'alarm bells' were not ringing when she saw on the vial such terms as "caustic substance" and "use under strict medical supervision". This is not complicated medical jargon. They are terms found more widely in every day situations outside the hospital environment. A non-medical, lay person would well understand these terms and treat a product labelled as such with some caution. 93 The applicant gave evidence that she read the complete label to the scout nurse (T.p50 and p73). However, Ex'B', the theatre report sheet, records that the drug said to be used was Conray 280. There can be only two explanations; either the applicant read out the full label and the scout nurse didn't record it correctly, or the applicant simply read out "Conray 280", omitting "Phenol 10%", "caustic substance" and "use under strict medical supervision". In my view, the truth of the matter was she mistakenly shorthanded the label and read only "Conray 280". If the applicant is to be believed then it is incomprehensible that no one hearing the full label would not have been alerted; including the applicant. I am satisfied that the applicant was less than honest with her evidence on this matter. 94 Putting aside the labelling warnings, the two vials were so vastly different in size, colour and dosage that it is even more implausible that the applicant's failure was a genuine and innocent mistake. While I do not for one minute suggest that the applicant deliberately used the offending drug knowing it to be wrong, there can be little doubt that her repeated failures amounted to a gross dereliction of duty in which she was manifestly careless. 95 The applicant acknowledged that the standard procedure when there is no prescription, and no standing order, is to show the vial to the doctor. She claimed the vial was there for the doctor to see. This is a pathetic defence. Whether the doctor trusted her, or not, or whether he should have inquired, is not at all to the point. The instrument nurse was the person administering the drug and it was her responsibility, as the point of last contact before injection, to be absolutely sure of what drug was being used, and to follow uncomplicated and conventional procedures. She failed on both counts on numerous occasions. 96 Another defence, pressed by the applicant, was a claim that the offending drug was a new drug not approved by the Canterbury Hospital Drug Committee and not communicated through the hospital system. This claim is plainly incorrect. Phenol 10% in 60% Conray 280 is widely used in the health system. It was not a new drug either to the area health service, or the hospital. Even if it was a new drug, the applicant's claim is no defence at all. New drugs are entering the hospital system all the time. It surely must be a professional obligation on a senior nurse to acquaint herself with any new drug and, if in any doubt, query and question it. She failed to do so. Her only query was its size and this was because she found the smaller vial inconvenient. 97 I have found the most disturbing aspect of this case to be the applicant's total oblivion to her role in the incident as being in any way responsible for what occurred. It was as if she wasn't even there. 98 The applicant was asked if she accepted any blame or liability. She stubbornly refused to accept even the slightest responsibility; let alone the enormity of her role. I cannot comprehend how anyone could possibly maintain this view in the face of the overwhelming evidence to the contrary. 99 There is no doubt that the review identified human, systemic and procedural faults. Three other instrument nurses were involved in single procedures during the relevant period. All of them were interviewed and exonerated; one hadn't used the offending drug, one arrived in theatre after the drug had already been injected and one wasn't even there. Compare these nurses with the applicant, who was involved in twenty-five or twenty-six of the twenty-eight procedures? One can't possibly imagine how the applicant could rationally claim her treatment was too harsh in comparison to others. 100 In acquitting herself, the applicant was hell bent on apportioning blame on so many others - no matter how unfairly or recklessly. The scorn and blame she heaped on others was nothing short of breathtaking. She blamed the junior nurses, the scout nurses, the pharmacist, the doctor, the Drug Committee, the computer, the system itself - everything, and everyone, but herself. In numerous simple questions about her actions she turned the answer around to shift blame on to others. The following example is starkly to the point: Q. So you recall the fact that Ms Wong raised with you the fact that it contained Phenol, yes? A. Yes. Well, did she raise the matter with the doctor? Did she check with the doctor as well. (T.p86) Even accepting that other human and systematic errors were involved, I ask rhetorically do these errors exonerate her role in the incident? She was an experienced endoscopic nurse. The last, and most important point of control and checking was her responsibility. Nothing can detract from this self evident truth. 101 It ill behoves a nurse of twenty-three years experience whose role in the incident was so central and whose actions were so manifestly careless, to lay the blame at everyone else and assume not a skerrick of responsibility. 102 I can find no basis which would warrant the intervention of the Commission in the respondent's decision to dismiss the applicant. 103 The application is dismissed. Peter Sams Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.