Industrial Relations Commission of New South Wales CITATION: ASMOF & HSU v Director General of NSW Health [2008] NSWIRComm 204 Australian Salaried Medical Officers' Federation (New South Wales) PARTIES: Health Services Union (New South Wales) Director General of NSW Department of Health in respect of the NSW Health Service (Northern Sydney Central Coast Area Health Service) FILE NUMBER(S): 662 and 802 of 2008 CORAM: Grayson DP CATCHWORDS: Industrial dispute - Disciplinary action - Exhaustive investigation and enquiry - Initial decision not to take disciplinary action subsequently reversed - Procdural fairness issues - Parties agree to be bound by recommendation of the Commission LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 25 July 2008, 18 August 2008, 28 July 2008, 13 October 2008 DATE OF JUDGMENT: 27 October 2008 Mr J Nolan of counsel for the Australian Salaried Medical Officers' Federation (New South Wales) with Ms V Hiley, Senior Industrial Advisor Mr D Lipman, Industrial Officer, Health Services Union (New South Wales) LEGAL REPRESENTATIVES: Mr R Hitchen, Manager of Employee Relations, Northern Sydney Central Coast Area Health Service JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson, DP 30 October 2008 Matter No IRC 662 of 2008 Notification under section 130 by Australian Salaried Medical Officers' Federation (New South Wales) of a dispute with Northern Sydney Central Coast Area Health Service re investigation of complaint Matter No IRC 802 of 2008 Notification under section 130 by Health Services Union of a dispute with The Northern Sydney Central Coast Area Health Service and another re procedural fairness RECOMMENDATION [2008] NSWIRComm 204 1 I am asked in these matters to make a recommendation or recommendations as the case may be by which the parties agree to be bound. 2 The issue for determination by the Commission is whether as a matter of procedural fairness or otherwise, the Northern Sydney Central Coast Area Health Service should be permitted, almost twelve months after its making and formal communication, to revoke a decision not to take disciplinary action against two senior employees. 3 The employees concerned are Dr Nick O'Connor who was until his last day of service on 18 April 2008, a senior staff specialist in psychiatry and Area Director of Mental Health and Mr Declan O'Riordan, Director of Hornsby Ku-ring-gai Hospital Mental Health Service. 4 The matter of what if any disciplinary action should be taken against individual employees has a long and complex history beginning with the tragic death by suicide in February 2003 of a patient who had some days earlier removed herself without formal discharge from psychiatric care in the Lindsay Madew Unit, Hornsby Ku-ring-gai Hospital. 5 An Inquest into the patient's death concluded in August 2004 with a formal finding by the Deputy State Coroner that the patient had committed suicide and whilst his Honour in an oral decision noted some criticisms of the Hornsby Ku-ring-gai Hospital Mental Health Service and certain aspects of the patient's care and treatment whilst at the Lindsay Madew Unit, there were no adverse findings against or with respect to individual practitioners or administrators. Rather, his Honour made a series of recommendations directed at the NSW Minister for Health in the interests of standardising and otherwise improving certain policies and procedures applying to mental health inpatients in New South Wales. 6 Thereafter the matter was subject of comprehensive review and report firstly, by the Health Care Complaints Commission whose findings were published on 14 March 2006; and secondly, by Mr M. J. Kimber SC who was retained by the then Area Chief Executive Dr S Christley to examine and report upon complaints made by the parents of the deceased patient and in particular, relevantly for the purpose of this determination, whether Dr O'Connor or Mr O'Riordan or both of them may be guilty of a breach of a discipline as a result of being careless, inefficient or incompetent in the discharge of their duties. 7 Mr Kimber SC provided his report on 19 July 2006. The report was almost one hundred pages in length and in addition contained another sixty five pages of appendices thus giving some indication of its breadth and scope. 8 Upon receiving the Kimber Report, the Area Chief Executive Dr Christley asked that it be reviewed by Dr P Hoyle, Director of Clinical Governance and Mr C Landrigan, Area Director of Human Resources in order to assist him in deciding whether to take disciplinary action against Dr O'Connor and/or Mr O'Riordan. 9 In the result the Hoyle/Landrigan Report concluded on 13 November 2006 that there was no proper basis upon which to take such disciplinary action and recommended that relevant persons be so informed. This occurred orally in November 2006 and again in early March 2007 in the form of written advice from Dr Christley to Dr O'Connor and Mr O'Riordan to the effect that there would be no disciplinary action taken against them. 10 In the face of continuing representations from the parents of the deceased patient and in turn their non-acceptance of Dr Christley's decision not to take disciplinary action, yet another review of the matter was commissioned. On this occasion Mr J Taylor, Consultant, who was retained some time after Dr Christley had vacated the Area Chief Executive position (albeit it would seem, with Dr Christley's acquiescence), was asked to provide the Area Health Service with an opinion as to whether disciplinary action against Dr O'Connor and Mr O'Riordan was warranted. 11 Mr Taylor's consultancy was not disclosed to either Dr O'Connor or Mr O'Riordan until after his report had been prepared and provided to the then Acting Area Chief Executive Mr T Clout who wrote to both Dr O'Connor and Mr O'Riordan on 21 September 2007 attaching Mr Taylor's report ostensibly for the purpose of enabling them to comment upon it but indicating at the same time, that he (Mr Clout) was inclined to accept Mr Taylor's conclusion - contrary to Dr Christley's decision almost a year earlier - that disciplinary action was warranted. 12 It is appropriate to observe here that the disciplinary action proposed by Mr Clout (and later taken by the substantive appointee to the Area Chief Executive position Mr M Daly) was to place on each employee's personnel file written advice of adverse finings against them as well as a written requirement that each of them be more diligent in the future in implementing, communicating and monitoring important systems (such as policies and protocols relating to patient categorisation and patient leave) and requiring further that the practices in place be regularly tested. 13 Mr Clout proposed this disciplinary action and Mr Daly subsequently implemented it notwithstanding representations made on behalf of each employee protesting the re-opening of the matter and the ultimate reversal of the previous Area Chief Executive's decision. 14 It is submitted by ASMOF on behalf of Dr O'Connor and by HSU on behalf of Mr O'Riordan that both employees were entitled upon being informed by Dr Christley in late 2006 of his considered decision not to take disciplinary action against them, to treat the matter as having been closed and that to re-open the matter and unilaterally reverse the earlier decision almost a year later visits gross unfairness upon employees concerned. 15 ASMOF expressed their concerns this way in a letter of protest to Area Chief Executive Mr Daly:- The Federation is of the view that you are not entitled to do so for the following reasons: 1. This matter is already closed. It was closed in November 2006 when Dr O'Connor was advised by the then Chief Executive Officer, Dr Stephen Christley, that he had considered all of the relevant material and advice in relation to the Willets' allegations including the review of the matter carried out by eminent barrister, Mr Kimber SC, and that he saw no reason to take any disciplinary action against Dr O'Connor. The Chief Executive followed this initial advice with a formal letter advising Dr O'Connor that the matter was closed on 6 March 2007. The principle of double jeopardy applies in these circumstances - Dr O'Connor had already been 'tried' in relation to this matter and found to be without blame. He cannot now be 're-tried'. 2. We contend that the area in commissioning a further review is acting ultra vires the scope of the original investigation into this matter because the disciplinary process had already been completed when the further review was commissioned. 3. That being so, the Area's actions in commissioning another report constitute a blatant exercise in 'expert shopping' and a denial of procedural fairness in the sense that no new material (Taylor Report, p7 paragraph 29) was provided to Mr Taylor that might have justified him recommending that Dr Christley's decision be overturned. 4. Dr O'Connor was not consulted about this further review and nor was he permitted to take part in it. Moreover, the Taylor Report made no reference to the more than 100 pages in submissions that he and Declan O'Riordan provided in response to the Kimber Review. This glaring omission by Mr Taylor is despite Dr Christley specifically including this material within the scope of the Taylor Review. These are further instances of a clear denial of procedural fairness to Dr O'Connor. 16 It is further submitted by Mr Nolan for ASMOF that it was an extraordinary and gross denial of procedural fairness to Dr O'Connor (and by inference to Mr O'Riordan) that they had no knowledge that a 'fresh' enquiry had been commissioned, that there was no consultation about it, that no new material was furnished to Mr Taylor and that there is no indication in his report that any of the more than one hundred pages of submissions made to the Kimber Inquiry by Dr O'Connor and Mr O'Riordan, were taken into account. Mr Taylor on the face of it, merely reached his conclusions in a way which not only raises significant issues of procedural fairness but also calls into question the nature and sustainability of those conclusions. 17 In my opinion there is unassailable force in the proposition for which the unions here contend and it is of no moment, as the Health Service argues, that policy directive by which it is bound namely PD2005_225 "A Framework for Managing Disciplinary Process in NSW Health" does not expressly preclude reversal of a decision such as the one in question here. As Mr Nolan submits as a matter of principle, such a proposition flies in the face of the desirability of finality and regularity of administrative decision making - especially that class of decision which affects the rights of employees and secondly, it finds no support in the actual terms of the relevant policy document or the manner in which such policy documents are ordinarily applied in order to bring about those desirable qualities of finality and regularity. 18 In the course of these deliberations, I have paid close regard to the comprehensive body of material received from the parties and to the competing arguments they have advanced. In so doing, it is impossible not be moved by the tragic loss of a young life and the earnest desire of parents to find appropriate levels of accountability in those perceived to bear responsibility but to my mind, the matter was the subject of searching and detailed analysis including first-hand interviews with all concerned and it involved the collective minds of an eminent senior counsel in Mr Kimber SC, the Area Director of Clinical Governance Dr Hoyle and the Area Director of Human Resources Mr Landrigan. Those collective minds and the contents of their comprehensive reports objectively informed the Area Chief Executive Dr Christley in the considered decision he made in November 2006 and in my view it was inappropriate and unfair in all the circumstances for the matter to have been revisited as it was in September 2007. 19 I therefore recommend the recision of disciplinary action taken against Dr O'Connor and Mr O'Riordan and an expunging of the record insofar as it contains any findings or conclusions adverse to them. 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.