Industrial Relations Commission of New South Wales CITATION : NSW Nurses' Association (o/b of Jane Rawlinson) v Hunter Area Health Service [2003] NSWIRComm 411 PARTIES : NSW Nurses' Association Hunter Area Health Service FILE NUMBER: IRC 3070 of 2003 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - misconduct Held - mitigating circumstances insufficient to outweigh gravity of conduct - no lack of procedural fairness - termination not harsh, unreasonable or unjust LEGISLATION CITED : Health Care Complaints Act 1993 Industrial Relations Act 1996 HEARING DATES: 08/28/2003; 10/10/2003 DATE OF JUDGMENT: 11/25/2003 APPLICANT Mr J O'Brien NSW Nurses' Association LEGAL REPRESENTATIVES: RESPONDENT Mr De Meyrick of Counsel Solicitor Ms A Brown Sparke Helmore Solicitors JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 25 November 2003 MATTER NO IRC 3070 OF 2003 NEW SOUTH WALES NURSES' ASSOCIATION (ON BEHALF OF JANE RAWLINSON) AND HUNTER AREA HEALTH SERVICE Application re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 ("the Act") DECISION [2003] NSWIRComm 411 1 The application in this matter was filed on 6 June 2003 and subject to proceedings for the purpose of Conciliation and Directions on 20 June 2003 and 3 July 2003. These proceedings established that the matter could not be settled by conciliation and directions issued to bring the matter to hearing on 28 August 2003. In the event the estimate of one day required for proceedings proved ambitious, the matter concluding on 10 October 2003. 2 On hearing Mr J O'Brien of the New South Wales Nurses' Association appeared on behalf of the applicant, Ms Jane Rawlinson. 3 Mr R De Meyrick of Counsel, instructed by Ms A Brown, solicitor of Sparke Helmore, appeared on behalf of the respondent, Hunter Area Health Service (HAHS). 4 Mr O'Brien brought evidence from the applicant; Ms K Brokate; Ms R McDuie; Ms J Bailey; Ms L Harris; and Ms M Caslick, employees of the respondent employed in the position of Registered Nurse at Scott Memorial Hospital, Scone. 5 Mr De Meyrick brought evidence from Ms S Ayre, General Manager of the Upper Hunter Sector of HAHS; Ms D Lewis, Executive Officer/Director of Nursing, Scott Memorial Hospital; and Ms N White, a Human Resources Manager employed by HAHS. 6 Mr De Meyrick also brought evidence in affidavit form from Ms F Horsley (exhibit 9), employed by HAHS as a Pharmacist at Scott Memorial Hospital at the relevant time. Ms Horsley was not required for cross examination. THE EVIDENCE 7 The applicant commenced employment at Scott Memorial Hospital, Scone ("the hospital") in April, 1998 and continued in that employment until termination thereof on 19 May 2003. 8 The applicant completed a Diploma of Applied Science (Nursing) at the Charles Sturt University in Bathurst from 1989 to 1992, culminating in the issue of a Certificate of Registration by the NSW Nurses' Registration Board on 21 January 1993 and conferring of a Diploma on 1 April 1993. 9 The circumstances leading to the termination of the applicant's employment are described by her in her affidavit (exhibit 6) at points 6, 7, 8, 9, 10 and 11. 6. I was working on the evening shift at Scott Memorial Hospital Scone on the 29 April 2003 helping a fellow registered nurse check out some Panadiene Forte for a patient around 8 pm. 7. When I took the two tablets out of the box that made the box empty. I said to the other staff member "what can we put in this box to see how long it takes for someone to notice there is a Panadiene Forte Box sitting on the bench with something in it". 8. I suggested Panadol, my colleague suggested Metformin tablets (Diabex) because they look a lot like Panadiene Forte so I put them in the box and closed the lid and put the box up on the bench next to the Dangerous Drugs cupboard. 9. The next day 30 April was my day off. I became aware that overnight a registered nurse on duty found the box and put the box in the Dangerous Drugs cupboard. The morning staff registered nurse found the "extra box" of Panadiene Forte and called the pharmacist. 10. My colleague who was with me on the night of 29 April 2003 arrived at work the next afternoon she inquired about the 'practical joke' 11. My colleague telephoned the pharmacy and asked the pharmacist to take a closer look at the tablets and would find that the tablets were Metformin not Panadiene Forte. The pharmacist notified the Director of Nursing who then notified the General Manager who notified Human Resources who suspended me until further notice. The last day that I worked was the afternoon shift of the 29 April 2003. 10 The colleague referred to by the applicant is identified as Karissa McGregor, a junior nurse. At the time of these events the applicant was the nurse designated "Hospital in Charge" and as such vested with the overall responsibility for the hospital. 11 These events, so described by the applicant, triggered a series of fact finding interviews and enquiry by hospital management, in particular Ms Lewis, Ms Ayre and Ms White. 12 The conclusions reached by management was that the applicant had resealed the Panadeine Forte box, replacing the tamper evident seal in a manner suggesting that there had been no intrusion into the container and that the contents were Panadeine Forte as dispensed by the Pharmacist. 13 The applicant denies having replaced the tamper evident seal. The particular Panadeine Forte box in question was tendered (exhibit 11). 14 HAHS has made a complaint to the Healthcare Complaints Commission (HCC) and has referred the matter to the NSW Nurses' Registration Board for its consideration. 15 The applicant was informed of the complaint and her response sought by the HCC in correspondence of 22 July 2003 (annex. I to ex 6), which states: Dear Ms Rawlinson Re: Complaint from Hunter Area Health Service I refer to our letter to you dated the 26th June 2003 advising you of the complaint and the Commission's decision to investigate the matter. The Health Care Complaints Commission has received a statutory declaration from the Nurses Registration Board verifying the complaint. The Commission has also received information from the Hunter Area Health Service in relation to the allegations. Could you please provide a response within 21 days to the following: 1. That you were the nurse in charge on afternoon duty on the 29 April 2003 at Scone Scott Memorial Hospital. 2. The allegation that you placed 15 tablets of Metformin into a empty Forte packet and left it in the medication room as a joke. 3. The allegation that you discussed this with another staff member prior to placing the tablets into the box. 4. The allegation that you did not inquire with staff to determine what happened with the medications you placed in the Panadeine Forte box. 5. Could you please provide the Commission with your knowledge of the pharmacetucial properties of both Panadeine Forte and Metformin. Including indications for use and contra indications. Please note that in accordance with s.28 of the Health Care Complaints Act, 1993 (the Act), if the health practitioner has provided the health service in issue in the capacity of an employee or under a contract or agreement with a person who is, or conducts, a hospital or other health care facility, the Commission must give notice in writing of the decision to refer the complaint for investigation to the person. The Commission has notified Hunter Area Health Service of the Commission's decision to investigate the complaint. Please note that s.99 of the Health Care Complaints Act 1993 provides that: A person who furnishes the Commission with information for the purposes of this Act knowing that it is false or misleading in a material particular is guilty of an offence. and S98 of the Health Care Complaints Act 1993 provides that it is an offence to intimidate or bribe any person not to make a complaint to the Commission or a registration authority or not to continue with a complaint made to the Commission or registration authority. You may wish to consult your professional Indemnity insurer/ professional association / solicitor in relation to this matter. 16 The applicant, through the NSW Nurses' Association (NSWNA), pressed the instant proceedings prior to a determination of either the HCC or the NSW Nurses' Registration Board, submitting that such enquiries may take years to complete and that it was in the interests of all parties that this matter be heard and determined. 17 The application to proceed was not opposed by the respondent. 18 During the course of a fact finding interview held on Monday, 5 May 2003 (annex. D to Ex 6) the applicant denied replacing the tamper evident seal on the Panadeine Forte box, admitting that she had put Metformin tablets in the box and left it on the bench to "see who would notice it". During the course of that interview the applicant was unable to provide any explanation for her action, admitting that it was an irresponsible and foolish act. 19 A further interview was held with the applicant on 14 May 2003 (annex. E to Ex 6) in which the applicant was further requested to provide any mitigating reason or explanation for her actions. The applicant offered no explanation on that occasion, conceding that she had significant remorse over the event and was ashamed of her actions. 20 In the interview of 14 May 2003 the applicant was assisted by Ms Yates, an area organiser of the NSWNA, who reinforced the contrition felt by the applicant, noting that there is no record of previous incidents and emphasising that the fact that the applicant was at the time in charge of the hospital and had acted as a Nurse Unit Manager which was indicative that she could be considered to be a safe and reliable practitioner with an unblemished record. Ms Yates sought the penalty of severe warning and performance management program to apply to future conduct of the applicant in preference to termination of employment. 21 At the conclusion of this interview Ms White offered the applicant a further 24 hours to provide any additional explanation or mitigating circumstances. 22 The applicant was unable at the time to offer further information to the respondent. Annexure H to exhibit 6 is a handwritten letter setting out for the first time reasons and circumstances confronted by the applicant at the time of the incident. Annexure H, which is undated, states: To whom it may concern, My name is Jane Rawlinson and I am guilty of instigating a practical joke which went horribly wrong and for that I am very sorry, so sorry in fact I find it difficult to talk about it, so I have decided to write my thoughts down. Over the past 10 years of being a Registered nurse, I have always considered myself to be a dedicated nurse whose top priority had been the highest standard of care for patients and family, and also the maintenance of a safe environment for both patients and staff. On the 29th April 2003, I found myself pregnant for the 3rd time, my 2nd child only being 3 months old. This is the evening when something inside me digressed and I allowed myself to lower my standards and place a medication in an incorrect box, thus exposing patients safety to numerous possibilities. This was truly a terrible error of judgement on my behalf, which I will never be able to forgive myself for. For it was not only me I let down, but my colleagues, hospital and most of all my family - all people that relied upon my good judgement and leadership skills. In hindsight I can now see and understand what a truly irresponsible and irrational act it was, something that could never be considered a 'joke' but a serious breach of hospital policy that could have had detrimental effects for all involved. I cannot explain how ashamed and sorry I truly am, I can only hope that you may see past this serious error of judgement and allow me to earn back the trust I have violated and once again be part of the Hunter Area Health Service. I am quite confident this experience will be a source increasing professional growth for me and I fervently hope that my indiscretion can one day be forgiven. 23 The decision by HAHS to terminate the applicant's employment was subject to further review during the course of conciliation. The respondent maintained its view that it was inappropriate to continue the applicant in employment. 24 The evidence of Ms Brokate, Ms McDuie, Ms Bailey, Ms Harris and Ms Caslick provide character reference to the applicant and describe their personal experiences with her, both as a colleague and around the time of the event in question. Each regard the applicant as a dedicated and competent nurse who has overcome significant obstacles to obtain her qualifications, thus demonstrating a determination and desire to be a nurse. Each of these witnesses regard the event of 29 April 2003 to be totally out of character. Each describe the absolute contrition and regret expressed by the applicant to them subsequent to the incident. The evidence of Ms Brokate supports the applicant's evidence in respect to her anguish on discovery of her third pregnancy. 25 The affidavit of Ms Horsley, the resident Pharmacist, deposes that on 30 April 2003 at approximately 9.45 am she received a telephone call from Julie Kingdom, Registered Nurse at the Walter Pie Wing of the hospital, requesting that she attend to check some S4D medication that was not entered into the dangerous drugs register. Ms Horsley's evidence is that S4D medications are prescription only drugs which have potential for abuse. They are kept in a locked drug safe on the ward and recorded in a drug register. Ms Horsley's evidence is that Ms Kingdom showed her a Panadeine Forte box, sealed with sticky tape. Ms Horsley notes that S4D medication containers are usually received on the ward with tamper proof seals to indicate nothing has been removed, adding that sticky tape is not used by the manufacturer or by the pharmacist. 26 Ms Horsley deposed that she opened the box to count the tablets but did not check the name on the blister pack. Ms Kingdom deposed that she then reviewed entries in the drug register and found all entries in respect to Panadeine Forte to be correct other than for the 15 tablets in the resealed box, which were in excess of registered stock. 27 Ms Horsley's evidence is that she then removed the Panadeine Forte box and 15 tablets therein from the wing and returned to the Pharmacy. 28 It is the evidence of Ms Horsley that between 1.30 and 2pm that day she received a telephone call from Ms McGregor alerting her to the possibility that the content of the Panadeine Forte box was not Panadeine Forte. Ms Horsley checked the content, discovering that they were in fact Diabex tablets which are similar in size and appearance to Panadeine Forte. 29 Ms Horsley's evidence is that Diabex, also known as Metformin, is not a pain control medication as is Panadeine Forte, and if given by mistake to a diabetic patient would lower their blood glucose levels. Ms Horsley deposed that for a non-diabetic patient there would be no reaction to blood glucose levels, adding that an adverse reaction of Diabex/Metformin, if given to any patient, may be diarrhoa, gastric upset, nausea and vomiting. SUBMISSIONS 30 Mr O'Brien submitted that the applicant had a hitherto exemplary record and was highly regarded within the hospital community as a responsible caregiver. Mr O'Brien submitted that the applicant was remorseful for her actions and offered her assurance that there would be no repeat of any such conduct. Mr O'Brien acknowledged that a penalty was properly imposed, submitting that the termination of the applicant's employment was harsh and her employment should be reinstated. 31 Mr De Meyrick submitted that the applicant's conduct amounted to dangerous negligence and that her subsequent explanation provided no assurance that there would be no repeat of the behaviour. 32 In expanding on the potential consequences of the exchange of Metformin for Panadeine Forte, Mr De Meyrick submitted that in the circumstances of a nil reaction a patient would not receive the pain relief for which the Panadeine Forte had been prescribed, leading to more severe and unnecessary pain relief medication and/or a misdiagnosis. 33 Mr De Meyrick submitted that the applicant's remorse was more associated with having been found out and her employment terminated than with the event itself. CONSIDERATION 34 This is indeed a difficult and distressing set of circumstances for all concerned. 35 Both Mr O'Brien and Mr De Meyrick referred me to a number of decided cases which, while helpful, are not determinative in this matter which descends to a consideration of admitted conduct. 36 There is a case for compassion toward the applicant in what might be characterised as a one off event, triggered by emotional trauma, however, the offence outweighs that consideration. 37 Notwithstanding the strenuous arguments advanced by Mr O'Brien on behalf of the applicant, the gravity of the offence is of sufficient magnitude that termination of employment could not be found to be harsh, unreasonable or unjust. 38 I find no lack of procedural fairness in the processes adopted by the respondent. 39 The applicant's continued employment in nursing is more properly reviewed by the NSW Nurses' Registration Board which will, in its own time, attend to that matter. 40 Matter No IRC 3070 of 2003 is so concluded. oo0oo 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.