Industrial Relations Commission New South Wales Medium Neutral Citation: Redmond v Director General, NSW Department of Health on behalf of the Ambulance Service of New South Wales [2013] NSWIRComm 36 Hearing dates: 18, 19, 23 April 2013 Decision date: 31 May 2013 Before: Harrison DP Decision: 1. Pursuant to section 89(1) of the Industrial Relations Act 1996 the Ambulance Service of New South Wales is ordered to reinstate Mr Peter Redmond to the position of Ambulance Officer Grade 2 with effect from 17 June 2013. 2. Pursuant to section 89(3) of the Industrial Relations Act 1996 the Ambulance Service of New South Wales is ordered to pay Mr Peter Redmond an amount equal to the remuneration he would have earned but for being dismissed, less any remuneration earned from paid employment or unemployment benefits of any kind in the period from termination of employment to reinstatement. 3. Pursuant to section 89(4) of the Industrial Relations Act 1996 the period of employment of Mr Peter Redmond by the Ambulance Service of New South Wales is taken not to be broken by the termination of that employment subject to these Orders. Catchwords: Application re unfair dismissal - Remitter from Appeal Bench. Allegation of misconduct in administering fentanyl intravenously rather than intranasally. Held - conduct not proven to comfortable satisfaction. Dismissal harsh, unreasonable and unjust. Reinstatement ordered. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34. Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Category: Principal judgment Parties: Peter Redmond (Applicant) Director General, NSW Department of Health on behalf of the Ambulance Service of New South Wales (Respondent) Representation: T R Edwards of counsel (Applicant) S J E Prince of counsel (Respondent) Harris Wheeler Lawyers (Applicant) Lander & Rogers Lawyers (Respondent) File Number(s): IRC 428 of 2010 DECISION 1Mr Peter Redmond was employed as an Ambulance Officer by the Ambulance Service of New South Wales from 1 February 1988 to the termination of his employment for misconduct on 14 May 2010. 2It is alleged that Officer Redmond administered fentanyl, a Schedule 8 (S8) drug, intravenously to a patient when the application of this narcotic by paramedics is limited to nasal delivery. 3The application for relief from unfair dismissal was heard in first instance by by Commissioner Tabbaa who, in a decision dated 13 October 2011 [2011] NSWIRComm 1051, found the termination of employment was not harsh, unreasonable or unjust and dismissed the application. 4The Commissioner's Decision was subject to appeal before a Full Bench of the Commission. In its Judgment published on 14 December 2012 [2012] NSWIRComm 147 the Bench made the following orders: (1) Leave to appeal is granted; (2) The appeal is allowed; (3) The order made on 13 October 2010 is quashed; (4) The matter is referred to a Member of the Commission (allocated by the President) to be determined in accordance with this decision. 5The matter was allocated by the President to the Commission as presently constituted in accordance with (4) above. 6In dealing with the remitter the Full Bench said: 74 In the amended grounds of appeal, the orders sought were confined to the grant of leave, the upholding of the appeal and quashing the Commissioner's order, and "such orders as this Honourable Court deems fit". We consider the most appropriate course is to order that the matter be referred to a Member of the Commission allocated by the President as a remitter. It is clear that a significant feature of the parties' respective cases has entailed the Commissioner making credibility findings. This is best accommodated by seeing and hearing the oral evidence of witnesses, as may be required, rather than the Full Bench attempting to resolve for itself evidentiary issues based on the transcripts and documentary evidence tendered below in the proceedings. 75 In deciding on this course, we are guided by the observations of the Full Bench in Lee (No 4) concerning the power to remit under s 192(1) of the Act and the consequences attendant upon the exercise of that power with regard to the approach to be taken by the Member of the Commission to whom the matter will be allocated for hearing. It is useful to extract from the Full Bench decision in Lee (No 4) those paragraphs which serve to clarify the scope and effect of a remitter, in the context of the issues which were ventilated between the parties in these proceedings. At paragraphs [125]-[129], the Full Bench said: [125] When leave to appeal is granted under s 188 of the Act, the powers of the Full Bench on appeal, are specified in s 192, as follows: 192 Powers on appeal (1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act): (a) confirm, quash or vary the decision of the Commission concerned, or (b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or (c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate. [126] Whilst s 192(1) does not refer to a re-trial or remittal, per se , in our view, such a power must be implicit under s 192(1)(c) (and possibly s 192(1)(b)). ... [127] The order for a remittal in Lee (No 2) did not, by its terms, constitute an order for a trial or re-trial (see Murphy at [75]). So much may be garnered from the form of the order which uses the words "in accordance with this decision" which, when taken with other commonplace terminology, such as "according to law", should not be construed as constituting a legal basis for a party to the remitted proceedings being entitled to tender such admissible evidence as it considered fit. [128] It follows that a party seeking leave to call fresh evidence in the remitted proceedings must make an application to do so. The order of remitter, per se, does not bring with it a view by the appellate tribunal whether leave should or should not be granted upon the making of such an application. We consider that the application so made is an application for leave to adduce further evidence. [129] That conclusion should not be taken, however, as an acceptance of the submission advanced by Mr Trew QC that the Commissioner was required to determine whether the respondent would or would not be committed to re-open its case. As Basten JA pointed out in Walker Corporation , that approach may "distract attention from the specific circumstances of the particular case" (at [92]). We consider Mr Trew's submissions to effectively contend for the establishment of a criteria equivalent to the re-opening of a case after judgment. We consider that approach to be productive of error (see Young JA in Walker Corporation (at [118]). As Young JA pointed out in Walker Corporation , what needs to be considered is "how in the changed atmosphere it should proceed to reach a just result" and, in doing so, the Commission would exercise a broad discretion as to "how the matter is to be concluded in a fair and just way". 76 In this matter we have identified evidence not taken into account by the Commissioner. This evidence will be available for consideration by the Commission Member to whom the matter will be allocated in addition to the evidence comprising the two competing versions advanced by Ms Horgan and the appellant, and any other evidence admitted by leave (including the recalling of witnesses). A further piece of evidence should be mentioned here for completeness. The PHCR which was completed sometime in the evening of 8 November was signed by Ms Horgan. We have referred earlier to the contents of that record. It confirmed the appellant's account that he administered fentanyl intranasally, and, contradicted Ms Horgan's account that 120 mcgs of fentanyl was administered. The record was not the subject of any submissions by the appellant in the proceedings below, although the fact that it was signed by Ms Horgan has obvious significance. It will also be available as a further piece of evidence for consideration when the matter is heard before another Member of the Commission. 7The matter was heard on remittal on 18, 19 and 23 April 2013. 8Mr Edwards of Counsel appeared on behalf of the Applicant. Mr Prince of Counsel appeared on behalf of the Respondent. 9Counsel were in strenuous disagreement on the process to be followed. Both relied upon the Full Bench's Judgment remitting this matter; Mr Prince to support an argument that the matter be heard by way of a full rehearing of the respective cases; Mr Edwards to support an argument that the remit is limited to a review of the evidence and argument having regard to the findings of the Full Bench with additional evidence only admitted by leave. 10A middle course was adopted having regard to the positions put by the parties and the observations of the Full Bench in Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 (Lee No 4) at paragraph 6 aobve, in particular the comments adopting Young JA in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178, that what needs to be considered is : "how in the changed atmosphere it (the Commission) should proceed to reach a just result"; and: "the exercise of a broad discretion as to how the matter is to be concluded in a fair and just way". 11Mr Edwards provided three volumes of material (MFI H1) containing the following: Description of Document Date Page No PROCESS AND PLEADINGS Application for Relief in relation to Unfair Dismissal 02.06.10 1 Employer's Reply to Application for Relief in relation to Unfair Dismissal 21.06.10 173 Application for Leave to Appeal and Appeal 01.11.11 182 EVIDENCE AND SUBMISSIONS Transcript of Proceedings 428/2010 before Tabbaa C 02.02.11 186 Transcript of Proceedings 428/2010 before Tabbaa C 03.02.11 277 Transcript of Proceedings 428/2010 before Tabbaa C 04.02.11 374 EXHIBITS TENDERED AT THE HEARING Affidavit of Applicant 30.11.10 389 Affidavit of Amanda Jane Horgan 19.12.10 458 Affidavit of Malcolm John Voyzey 21.12.10 498 Affidavit of Graham John McCarthy 21.12.10 648 Letter from Harris Wheeler Lawyers to Amanda Harvey of Lander & Rogers re requirement of witnesses for cross-examination 10.01.11 689 Investigations between Peter Redmond and Department of Health 21.12.10 691 Affidavit of Greg Rochford 24.12.10 843 JUDGMENTS 13.10.11 943 14.12.12 983 12Mr Edwards wished to rely upon this material and written submissions. Mr Edwards did not require any witness to be called for any purpose. 13Mr Prince called Officer Redmond for cross examination, which was allowed over the objection of Mr Edwards. 14Mr Prince made an application for leave to bring additional evidence from Mr B, the patient concerned; Mrs B, the patient's wife, who he put were the only people other than Officers Redmond and Horgan who were present at the relevant time and place of the alleged misconduct; and Officer Stuart Gourlay, in respect to the creation of a file note of the report to him by Officer Horgan. 15Mr Edwards opposed the grant of leave to bring this evidence on principle and on the basis that it added nothing to the material events. 16Mr Prince withdrew the application in respect to Officer Gourlay, accepting that his evidence that he could recall nothing about the creation of the file note rendered it an exercise in futility. 17Mr Prince pressed the application in respect to Mr and Mrs B; whilst accepting that they had no recollection of the particular events he submitted they could assist the Commission in challenging Officer Redmond's evidence in regard to Mr B's preference for fentanyl as opposed to morphine, which was the available alternative offered to him by Officer Redmond. 18The application to bring additional evidence was refused. 19The only new evidence put in this matter is by Mr Edwards with consent and leave. That evidence (Exhibit H1) is correspondence from the Ambulance Service of NSW to Officer Redmond dated 5 September 2012 advising him that he was eligible for the Long Service and Good Conduct Medal and inviting him to confirm his postal address for delivery. 20The Commission, in dealing with the remitter, has then the record of all prior proceedings conveniently assembled in MFI H1; the cross examination of Officer Redmond; and the submissions of counsel. The Circumstances of the Allegation 21The circumstances are conveniently set out by the Full Bench in their Decision (supra paras 3-10): 3 The allegations of misconduct arose in relation to an incident that occurred on 8 November 2009. At that time, the appellant was classified as a P1 level paramedic. He attended premises at Baulkham Hills in order to treat a patient, Mr B, for lower back pain. He was accompanied by a driver, Amanda Horgan, who was also a P1 level paramedic. According to the appellant, Mr B exhibited symptoms consistent with severe lower back pain. He first administered methoxyflurane via an inhaler. However, judging Mr B's pain to be still quite severe he offered him a choice of two narcotics, morphine or fentanyl. According to the appellant, Mr B said that morphine made him sick and he opted for fentanyl. The appellant said he administered the fentanyl intranasally using a mucosal atomising device ("MAD"). Ms Horgan left the room in order to retrieve an ambulance stretcher whilst the appellant was carrying out this procedure. When she returned the appellant was in the process of cannulating Mr B's right hand. He then flushed the cannula with a saline solution. The appellant, in his affidavit, explained his reason for cannulating Mr B. He described cannulation as a routine operation employed as a safeguard in order to facilitate an immediate response to a patient who may have a severe allergic reaction to the drug being administered. He said that part of his procedure when cannulating was to flush the cannula with the saline solution to clear it of any blood, so that any risk of blood clotting and causing an embolus is averted. 4 The appellant said that after a few minutes Mr B's pain was relieved and he was able, with assistance, to walk to the stretcher. Shortly after, Ms Horgan, with the appellant as the passenger, conveyed Mr B by ambulance to Norwest Private Hospital. 5 The appellant also filled in a Patient Health Care Record ("PHCR") upon arrival at the hospital. The PHCR, numbered J930203, was included in the appeal books. It is somewhat difficult to read, although some details are reasonably clear. It contains a description of Mr B's symptoms and the treatment administered to him. According to the PHCR, at 11.28am, Mr B received 3ml of methoxyflurane via an inhaler, followed at 11.35am by 180 mcgs fentanyl administered intranasally. The signatures of both the appellant and Ms Horgan appear on the document. 6 Ms Horgan, some time in the period 8 to 11 November 2009 said she made a notebook entry detailing her recollection of what she said had occurred at Mr B's premises on 8 November. She said she drew up 0.4ml of fentanyl (120 mcgs) (in a syringe). The appellant inserted a cannula. She said she "put the atomiser on" (presumably meaning she attached it to the syringe) at which point the appellant removed it, saying, "I'll show you a little trick". According to her, he then proceeded to dilute the fentanyl and "gave an unknown amount IV" (intravenously) to Mr B. He then administered "another unknown amount IN" (intranasally), saying to Ms Horgan "I'll explain later". In her file notes she also recorded a later conversation she said she had with the appellant. The portion of the file note reads as follows: When we were sitting in the car afterwards redo tried to explain how the dose works saying "he had measured out the doses before to know what he was giving, he also said that the way we give it is crap. It's surposed (sic) to be given IV, he stated that he had spoken to a doctor about it who he claims also thinks we should give it IV. He also stated "I trust you not to say anything" and "you just have to be careful who you do it infront (sic) of". He also stated that by giving it IN as well if the Pt was ever asked they would say yes I had it IN. I then said "thats just to cover your arse" he said "well yeah". 7 It should be explained at this point that the preparation of fentanyl (which is a synthetic, short-acting opioid analgesic) used by ambulance officers is intended for intranasal use only. According to Graham John McCarthy, Executive Director, Chemical Governance, employed by the respondent, the strength and composition of fentanyl for intranasal use is different from its intravenous preparation. Intravenous fentanyl is not approved by the Medical Advisor of Ambulance and there are no intravenous preparations available within Ambulance. The concentration of fentanyl for intranasal use is substantially stronger (six times stronger) than the concentration of fentanyl for intravenous use. In an affidavit prepared for the proceedings before Commissioner Tabbaa, Mr McCarthy referred to the risks associated with the intravenous administration of fentanyl, principally designed for intranasal use, as follows: The alleged action of intravenous administration of a preparation specifically designed for intranasal use, marked not for injection and which has a concentration six times higher than the intravenous preparation, presents a significant risk to the patient's safety. Patient safety is compromised by: (a) the administration of a fluid not designed in its sterility for intravenous use; (b) administration of a concentrated opioid analgesic not designed for intravenous use; (c) administration of a fluid with a composition different to fentanyl that is designed for intravenous use; and (d) the administration of an unknown quantity of highly concentrated opioid analgesic intravenously. 8 On 11 November 2009, Ms Horgan approached a senior officer, Officer Maguire, stating "Reddos given IV fentanyl". She said she was crying and quite upset. Officer Maguire contacted Officer Stuart Gourlay by telephone and handed the telephone to Ms Horgan. Officer Gourlay recorded what Ms Horgan said to him in a file note as follows: Amanda Horgan stated that on Saturday the 8th of November she was working with A/O Peter Redmond. They were attending a case of a male lying on the floor with back pain at XXXXXXXX at Baulkham Hills. A/O Redmond was treating. Amanda stated she assisted treating with Peter by drawing up 0.4mls of fentanyl in a syringe, attached the MAD and handed it to Peter for administration. Amanda stated that Peter said "I'll show you a little trick". He cannulated the patient, took some saline and diluted the initial dose of fentanyl handed to him by Amanda to an unknown amount. He then administered the diluted fentanyl intravenously. Amanda then witnessed him drawing up a second dose of fentanyl, did not check the amount with Amanda, and administered it via intranasal route. Amanda states that he then stated "I'll explain it in the car". In the car Peter stated to Amanda "that he had done a lot of reading about it and that we should be giving it intravenously". "You just need to follow it up with an intranasal does so if later questioned the patient will state that a drug was given up the nose". Amanda stated that he said he could only do this in front of people who wouldn't tell. His PHCR did not reflect the drug dose or route given. Also according to Amanda, a variation to Clinical Practise was not filled in. Amanda stated she did not do "straight talk" as she was initially intimidated by his comments and treatment. 9 It appears that a short time later, on 12 November 2009, Ms Horgan completed an Incident Information Management System ("IIMS") on the computer with the assistance of Officer Maguire. Beside the sub-heading "Incident Description", Ms Horgan gave the following account: Pt had 10 out of 10 back pain Officer Redmond commenced analgesia with methoxyflurane. According to the phcr there was minimal affect with the methoxyflurane and Officer Redmond requested fentanyl to be drawn up. I drew up 0.4mls (120 mcgs) and attached the atomiser and handed the complete unit to Officer Redmond. Officer Redmond then removed the atomiser and drew up 0.9% nacl in the same syringe that had the fentanyl in it. Mr Redmond then administered a portion of this solution IV. the remainder of the syringe was then given IN. 10 It may be observed at this point that a comparison between Ms Horgan's account of the incident in the IIMS and Officer Gourlay's record of Ms Horgan's account to him over the telephone reveals that the accounts are inconsistent in at least one significant respect. In Officer Gourlay's file note Ms Horgan is recorded as stating that the appellant administered one dose of diluted fentanyl intravenously and thereafter drew up a second dose of fentanyl which he administered intranasally. In contrast, the IIMS refers to one dose of fentanyl (120 mcgs) diluted with sodium chloride and administered intravenously with "the remainder of the syringe" administered intranasally. In her statement prepared for the proceedings before Commissioner Tabbaa, Ms Horgan provided an explanation for the inconsistent accounts. In relation to the contents of Officer Gourlay's file note she said: I deny having said that there was a second amount of fentanyl drawn into the syringe ... as it was the single 0.4ml dose of fentanyl which was diluted and administered both intravenously and then intranasally. There was only a total of 0.4mls/120 mcg in the syringe used for treatment of the patient that I saw given, however it was written up on the casesheet that the patient received 180 mcgs. 22The Full Bench identifed those issues which it considered required rectification on remitter (supra paras 66-69): 66 In oral submissions, the appellant submitted that the Commissioner, in identifying as the "key issue" for determination which witness was to be believed, posed the wrong question. We agree. The questions which arose for Commissioner Tabbaa's consideration in the proceedings were first, whether the misconduct occurred (in the context of considering the fairness of the decision) and secondly, if it did occur, whether the dismissal was harsh, unreasonable or unjust in all the circumstances, having regard to all of the relevant evidence: Director of Public Employment, by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) (2008) 184 IR 134 at [22]. 67 In Spillard v Patrick Stevedores Holdings Pty Ltd (2010) 193 IR 184 at [13], a Full Bench of Fair Work Australia said: ... while it is wrong in circumstances where a choice cannot be made between two versions of events, to hazard a guess at a possibility, a finder of fact needs to have regard to all of the evidence to ascertain whether references can be drawn to lead to a conclusion of probability". 68 In this matter, there was evidence available for the Commissioner's consideration in addition to the two competing versions advanced by Ms Horgan and the appellant. 69 The misconduct, the subject of the allegations against the appellant, was the alleged administration of fentanyl intravenously to Mr B. An enquiry into whether this occurred necessitated a consideration of all the available and relevant evidence. Evidence falling into this category included the eye witness accounts of Mr and Mrs B which, as we have already observed, provided support for the appellant's version of events that he administered fentanyl intranasally to Mr B. Other evidence falling into this category was the contents of Officer Gourlay's file note. Those contents revealed a second version of events given by Ms Horgan which was inconsistent with the version of events appearing in the IIMS completed by Ms Horgan. Officer Gourlay's file note records Ms Horgan as stating that the appellant administered one dose of diluted fentanyl intravenously and thereafter drew up a second dose of fentanyl which he administered intranasally. This contradicted Ms Horgan's other account that only one amount, or one single dose of fentanyl, was drawn into a syringe by the appellant. Commissioner Tabbaa acknowledged the significance of this evidence in the decision where she observed that Officer Gourlay's evidence "if successfully contested ... would have impugned the evidence of a major eye witness to the allegation against the applicant". 23At paragraph 10 the Full Bench noted: 10 It may be observed at this point that a comparison between Ms Horgan's account of the incident in the IIMS and Officer Gourlay's record of Ms Horgan's account to him over the telephone reveals that the accounts are inconsistent in at least one significant respect. In Officer Gourlay's file note Ms Horgan is recorded as stating that the appellant administered one dose of diluted fentanyl intravenously and thereafter drew up a second dose of fentanyl which he administered intranasally. In contrast, the IIMS refers to one dose of fentanyl (120 mcgs) diluted with sodium chloride and administered intravenously with "the remainder of the syringe" administered intranasally. In her statement prepared for the proceedings before Commissioner Tabbaa, Ms Horgan provided an explanation for the inconsistent accounts. In relation to the contents of Officer Gourlay's file note she said: I deny having said that there was a second amount of Fentanyl drawn into the syringe ... as it was the single 0.4ml dose of Fentanyl which was diluted and administered both intravenously and then intranasally. There was only a total of 0.4mls/120 mcg in the syringe used for treatment of the patient that I saw given, however it was written up on the casesheet that the patient received 180 mcgs. 24Further, the Full Bench noted (supra paras 70, 71, 76): 70 In the decision, Commissioner Tabbaa set out the evidence and submissions which addressed an issue between the parties concerning the different response times for the relief of pain when administering fentanyl, either intravenously or intranasally. The material was supportive of a finding that fentanyl, when administered intravenously, provided rapid relief from pain. In contrast, when it was administered intranasally, the analgesic effect was more gradual. In the proceedings below, the appellant submitted that this evidence was contra-indicative of a finding that fentanyl was administered intravenously because of the description given by Mr B in his interview which was that the effect of the drug "gradually improves through the process". This material, although set out in some detail in the decision, did not expressly form the subject of any analysis or findings by the Commissioner. 71 The evidence of Mr and Mrs B and Officer Gourlay was of direct relevance to the central issue for Commissioner Tabbaa's consideration, which was whether the appellant had administered fentanyl intravenously to Mr B. The failure by the Commissioner to take into account this evidence or to in any way reconcile the competing evidence in the context of determining whether the misconduct had been established by the respondent constituted a further error which requires correction on appeal. ... ... 76 In this matter we have identified evidence not taken into account by the Commissioner. This evidence will be available for consideration by the Commission Member to whom the matter will be allocated in addition to the evidence comprising the two competing versions advanced by Ms Horgan and the appellant, and any other evidence admitted by leave (including the recalling of witnesses). A further piece of evidence should be mentioned here for completeness. The PHCR which was completed sometime in the evening of 8 November was signed by Ms Horgan. We have referred earlier to the contents of that record. It confirmed the appellant's account that he administered fentanyl intranasally, and, contradicted Ms Horgan's account that 120 mcgs of fentanyl was administered. The record was not the subject of any submissions by the appellant in the proceedings below, although the fact that it was signed by Ms Horgan has obvious significance. It will also be available as a further piece of evidence for consideration when the matter is heard before another Member of the Commission. 25The information from Mr and Mrs B is conveniently recorded by the Full Bench in its Judgment (supra paras 13-17): 13 The patient, Mr B was interviewed shortly after on 15 December 2009. Mr B recalled being given medication in a green tube (the methoxyflurane). He was then asked the following questions to which he gave the following responses: Q. Fair enough. Do you recall what action occurred next? A. I remember them checking my legs to make sure they were - that I had feeling in my legs. I'm not sure if they found any problems or if they mentioned it, I don't remember. The next thing that I do remember was putting some sort of medication in my nose and asking me to shoot it up my nose apparently to make it work. Q. At any stage were you given a needle of any description or a cannula anywhere? A. They put a cannula in the back of my hand which is the part I wasn't sure of if they put the cannula in or gave me the nasal medication first but my wife told me that that was the nasal medication that was my first. Q. Let me just go back to that, you've been given the whistle that you inhaled from? A. Yes. Q. And then a device was placed in your nose? A. I'm not sure whether it was a device, they put some sort of chemical, some sort of medication in my nostril. 14 Mr B was also asked if he recalled anything being injected "into that cannulation site, into the device in the back of your hand". He replied, as follows: "Yes and I also asked him, I think, at some time what it was, they said it was a flush". 15 Mr B was again asked about the sequence of events: "So you're not sure in what order those three occurred?" Mr B replied, as follows: A. I definitely know the whistle was first. I wasn't sure whether the nasal or medication or the cannula was done next but my wife tells me that the nasal medication was next and then (indistinct). 16 Mr B also said that his level of pain "improved during the process", and that by the time he got into the ambulance he was experiencing "very little pain". 17 Mrs B was not interviewed until 20 April 2010. She said she could not remember "specifics". She recalled "the whistle" (the methoxyflurane). She also recalled a cannula being inserted into Mr B's arm, not his hand and "something" being administered to Mr B intranasally, although she could not recall the precise sequence of events. She could not recall any other treatment given to Mr B at that time. She said that after she returned home she found "the syringe" which she said was empty, and she threw it away. The following exchange also took place during the interview: Q: Okay. And then the male officer has asked the female, after he's put the cannula in, asked the female for something. A: Something. Yeah. Q: And she's handed him. A: The something. Q: The something, yes, okay. Um did you see I know this is difficult if you are in and out of the room, anything happen to that syringe before it was inserted into the cannula or if there was anymore, you know, adjustments happening? A: No I don't think, no I can't remember if anything happening to it. The Evidence 26In the proceedings before Commissioner Tabbaa and before the Commission as presently constituted Officer Redmond emphatically denied the intravenous delivery of fentanyl to Mr B. 27Officer Redmond put that he was shocked by the allegation, felt intimidated and nervous in the investigative process and had little or no recall of the actual events, reconstructing details when questioned about them. 28Officer Redmond was a very nervous witness in these proceedings and before Commissioner Tabbaa, which she was moved to remark upon (TR 3/2/11 p 11). 29Officer Redmond first explained his lack of recall to the investigation putting: "why would I recall this event, I attend hundreds of such calls". 30In cross examination before Commissioner Tabbaa on 2 February 2012, Officer Redmond said (TR 2/2/11 pp 15, 20, 21, 46, 47, 54): 'Q. And then indeed at page 60 of the affidavit, in the transcript you were asked a question about whether you'd give fentanyl IV if it was allowed and you say yes, you probably would, but at the moment -and then you say, going back to the issue of the cannula, "Look, if I went to the bother of cannulating a patient, if I think they're in enough pain, I'm going to give them morphine. Why would I go to all the hassle of diluting fentanyl to give it intravenously when I've got morphine in my kit, it's ludicrous." Do you see that? A. What page is that? Q. Page 60, lines 12 to 76. A. Yes, I accept that. Q. But you did go to the bother of cannulating him, didn't you? A. Yes. Q. So why didn't you administer morphine? A. Because he'd already had methoxyflurane and methoxyflurane and fentanyl, when given together, is very, very effective. Morphine has some significant side effects. If fentanyl does the job intranasally, I don't see the point in giving morphine and risking more severe side effects. Q. So you didn't see any point to giving him morphine? A. Not unless it was absolutely necessary. Q. Because of the -because the dose of methoxyflurane and together with the fentanyl, was an effective regime? A. Yes. Q. Well, if it's such an effective regime, why cannulate? A. I had cannulated a lot of my patients, particularly if I was going to give them S8s. Cannulation prior to the administration of a drug that can cause respiratory depression is a really good idea in case they need to have that respiratory depression reversed. Q. That wasn't your explanation in the interview with Ms Leech, was it? A. This was all sprung on me, I didn't have any time to ponder the questions. It was just immediate answers to immediate questions. Q. You needed some time to get your story straight, did you? A. I needed some - I would have liked to have had more time to ponder the questions. ... ... Q. So what you're saying is that when you're administering fentanyl, you regularly also insert a cannula in order to deal with any adverse reaction? A. Occasionally, if I deem it necessary. Q. I see. So what was it about Mr B's situation which made you deem it necessary to insert a cannula? A. Two reasons. One, he had a back injury. If he was going to vomit from either the fentanyl or morphine, if that were necessary, then the first thing he would do would be to exacerbate his back injury. I wanted to be able to prevent that if he started to become nauseous. Secondly, if he required stronger analgesic, ie. Morphine intravenously and had an adverse reaction to that, I would need to be able to administer naloxone to counteract that. Q. So realty you're dealing with the situation where there might be an adverse reaction to morphine? A. Possible, that's half of the answer, yes. Q. And it's more likely that there would be an adverse reaction to morphine than to fentanyl, isn't it? A. Statistically, yes. Q. So going back to what you said at the interview before Ms Leech, the reason that you cannulated Mr B on your evidence is because you thought you might be giving him morphine down the track? A. Again may I say that these questions were sprung on me, I didn't have no idea what the case, what the allegation or the details were. I've had more time to think about that. The reason I cannulated him was as I just said, twofold. Q. And so you've now got this actual recollection of something that happened in November 2009 which you did not have in December 2009? A. No, because I'd had no reason to even think about it. Q. All right. it's possible, isn't it, that in thinking about it and pondering it, your recollection may have become suited to the case that you want to put to this commission? A. I guess hypothetically that is possible, yes. Q. You see, when you were closer to the event and you told Ms Leech that the reason for the cannulation was in case he needed morphine, you didn't remember what you now remember in your affidavit of 2 December 2010, a year later, that he told you, Mr B told you, that morphine made him sick in the past. At paragraph 33(vi) of your affidavit on page 5. A. Yes, okay. Q. Where did that recollection come from, Mr Redmond? A. Long -having had a long time to think about this job with notice. Q. Right. So are you sure about that? A. Yes. ... ... Q. Mr Redmond, you say that you offered him -that he said that morphine had made him sick in the past, yes? A. Yes. Q. And your evidence is that your view is that fentanyl is a much better drug that morphine? A. (No verbal reply) Q. If you like, you can have a look at paragraph 50 of your affidavit, page 8, to refresh your memory. A. Yes, that is correct. Q. And you have a particular interest and knowledge of fentanyl, don't you? A. I found it quite fascinating. Q. So here you have a patient who has been given what you describe as an effective regimen of methoxyflurane and fentanyl and yet you still cannulate him in case he needs morphine in circumstances where he has told you morphine makes him sick? A. Mm-hmm. Q. Is that what you're asking the commission to accept? A. Yes, it's not unusual practice. Q. That's your usual practice? A. Yes, I said it is not unusual practice. Q. So is it regular or not unusual or occasional? A. For me personally? Occasional. ...... Q. B, sorry. What did he say? A. To be honest, I don't recollect exactly what he said. Q. What did he say roughly? A. I offered him fentanyl or morphine, explained what both those were and he said, I've had morphine -no, I can't remember exactly what he said, but he indicated to me that morphine had made him sick in the past. So I gave him fentanyl, inquired further after the fentanyl on the effects of morphine on him, decided it was a sensitivity, a transient sensitivity, which is what the sensitivities are, the nausea and the itchiness. It's transient, it goes away in a couple of minutes. Q. So that's what it was- A. Obviously what his side effects were. Q. So that's what he said to you, that it was itchiness and nausea? A. Yes, he said, "It made me sick". I asked him, "What sort of sickness?" "Oh, I just felt like throwing up". Okay, so I judged it to be a sensitivity rather than an allergy. Q. Sorry, he said, "I just felt like throwing up"? A. Yes. Q. When did he mention itchiness? A. I was talking about the common side effects of morphine administration intravenously. Q. Right. A. He may have said that, he may not have said that, I don't recall exactly what he said. Q. Well, you certainly didn't recall when you had an interview with Ms Leech several weeks after the event in December 2009? A. No. Q. You made no mention of this conversation in that interview, did you? A. No. Q. In fact it wasn't until you filed your evidence in these proceedings, a year after the event, that you mentioned that he had a reaction or was made sick by morphine? A. That is right. Q. And you still haven't included in that affidavit any reference to this attempt by you to check on the very nature of the sickness that the morphine induced? A. No. Q. That's something you just recalled as you were sitting here today? A. I cannot say that I distinctly recall that conversation, no, but that would be my normal process of inquiring or questioning of a patient regarding his medical history. I can't recall the conversation I've had with any patient. Q. Well, if that's your conversation about the medical history, should you not have recorded that in the part of the form which records the medical history? A. Not unless it was particularly significant, no. Q. So we could expect that if there had been a sensitivity recorded in the column under allergies, there would be some comment on the form to make it relevant or show that it was significant? A. Yes. ... ... Q. Mr Redmond, did you cannulate Mr B before or after you administered the fentanyl? A. To be honest, I don't recall. Q. You don't recall now? A. I don't recall at all. Q. You gave evidence to the commission earlier this morning that you cannulated him prior to administering fentanyl? A. Prior to administering the fentanyl? Q. That is right. A. It's possible. I may have cannulated him whilst he was trying the methoxyflurane, but more likely it would have been after the administration of fentanyl, but it's possible either way. I don't recall specifically. Q. I see. You've said that since the interview -sorry, I think you've given evidence that you didn't have time to ponder the circumstances of Mr B's incident prior to attending the interview with Ms Leech on 18 December 2009. Do you remember giving that evidence? A. True, yes. Q. And you say that since then, you have had time to ponder the circumstances? A. Yes. Q. And if there was any difference between what you said to Ms Leech then and the evidence you're giving to the commission now, presumably that is because you have now had a chance to ponder the circumstances? A. That is correct. 31To the best of his recollection and reconstructions Officer Redmond's evidence leads to a conclusion that on entering the residence of the patient he: (1)assessed him; (2)delivered methoxyflurane orally in the prescribed manner referred to as a "green whistle"; (3)administered fentanyl nasally; (4)cannulated the patient; (5)flushed the canula; (6)escorted the patient to the ambulance and transferred him to hospital. 32Officer Redmond provided all of the direct treatment. Officer Horgan assisted by providing materials and medications and preparing the stretcher. 33Officer Horgan's evidence is that she recalled preparing the stretcher after Mr B's treatment was complete but had no recollection of whether she or Mr Redman cleaned up the used materials (TR 3/2/11 pp73, 74). 34Officer Redmond completed the Patient Health Care Form (PHCR) J930203 (Attach. A Exhibit P3, Officer Horgan's Statement) which Officer Horgan co-signed. In this Form Officer Hogan and Officer Redmond agreed on the report. Officer Horgan subsequently deposed that she felt compelled to sign off on all of the paperwork for the job as presented to her by Officer Redmond, putting (Ex 3, para 8): "..even though I did not see any additional Fentanyl administered to the patient or the left over Fentanyl discarded." 35 Officer Horgan's version of events is not inconsistent with that of Officer Redmond except for the assertion that he administered only part of the fentanyl nasally and mixed the remainder with the saline solution used to flush the cannula, thus illegally and improperly administering fentanyl intravenously. 36Officer Redmond denies Officer Horgan's assertion that he said: " I will show you a little trick"; and: "I will explain in the car"; and further denies that there was any conversation in the ambulance of the type put by Officer Horgan. 37Officer Redmond's evidence is that cannulation is a routine procedure. Mr Prince pursued this evidence on the basis that "routine" meant every time a patient is treated, and relied upon records to support a view that it did not occur frequently and was not "routine" as Officer Redmond deposed, thus attacking the credibility of his evidence. 38My observation is that Officer Redmond was using the term "routine" in a number of ways; cannulation is essential (therefore routine) where any substance is to be delivered intravenously, however, the decision to cannulate a patient depends on the attending officer's assessment of the patient, and where a decision is made to cannulate, the process of inserting the cannula is routine. 39Officer Horgan's evidence supports this proposition, replying to questions by Mr Edwards in cross examination before the Commissioner (TR 3/2/11 p54): Q. And its permissible, is it not, for an Ambulance Officer, if he expects to use morphine as treatment, in anticipation of that, to cannulate? A. To use morphine, yes. Q. That is correct isn't it. So if an officer holds a belief that in his view the patient may require morphine, its appropriate to cannulate? A. Yes. 40Later, in further cross examination (supra at p61) Officer Horgan accepted that it is quite proper to cannulate a patient in anticipation of using morphine. 41There is conjecture as to whether Mr B informed Officer Redmond that he was allergic to morphine or preferred something other than morphine, or made a choice to have fentanyl other than morphine. 42Officer Redmond is clear in his recollection, so far as he remembers any of the events of the incident, that Mr B told him that morphine had made him sick in the past. 43Mr Prince sought to bring evidence from Mr and Mrs B to challenge this last statement. Leave to admit the evidence was refused. 44The fact is Mr B was given fentanyl. The evidence already established that Officer Redmond had little or no direct recollection of the particular event. 45The existence or otherwise of the discussion between Mr B and Officer Redmond and which of their evidence on that point is accepted is not material to the larger question of conduct, nor in my assessment to the credibility of Officer Redmond's evidence. 46It is not necessary to resolve any contest in the evidence between Mr and Mrs B and Officer Redmond to address the primary question of whether Officer Redmond did or did not administer fentanyl intravenously. 47The disparity between Officer Redmond's evidence and that attributed to Mr B whether Mr B expressed a preference for fentanyl due to morphine making him nauseous, or whether Mr B made no such election and had no prior experience with morphine, does not detract from the evidence of either as to the sequence of events in the administration of fentanyl and cannulation. On this point Mr B's evidence supports Officer Redmond. 48The Full Bench on appeal expressed the view that the information provided by Mr and Mrs B to the investigation should have been taken into account by Commissioner Tabbaa in her decision. 49That information is found in Mr Rochford's evidence (Annex. 13 to Ex P8) in the form of a record of interview of Mr B by the investigating officer, Ms Leitch which took place on 15 December 2009. 50Mr B confirmed that he was on the floor in the lounge room when the ambulance arrived at his residence. Mr B informed Ms Leitch that he could not recall all of the events due to the pain he was suffering, but did recall that his blood pressure was checked and that there was some conversation prior to him being given a green tube with some medication which seemed to relax him and relieve the pain slightly. Mr B recalled that the ambulance officers then checked for feeling in his legs before putting some sort of medication in his nose and asking him to inhale, and the insertion of the cannula in the back of his right hand. 51Mr B told Ms Leitch that he was unsure if the cannula was inserted prior to the nasal medication, however, his wife had told him that the nasal medication was administered first. Mr B recalled the cannula being flushed, and that the pain gradually resided to the point that he could walk with assistance to the stretcher. 52Mr B put that before the ambulance arrived he was shaking uncontrollably, especially in his legs, which worried his wife. Mr B told Ms Leitch that the shaking stopped at some time during the ambulance officers attending to him. 53Mr B further told Ms Leitch that he recalled his wife was standing some two to three meters away from him with a clear line of sight to him from the elbows down, but his head was probably out of her view. 54The direct evidence of Officer Horgan before the Commission is a handwritten note dated Sunday, 8 November 2009 (Exhibit E4) and the cross examination of Officer Horgan before the Commissioner (TR 3/2/11 pp45-95). 55The allegations put by Officer Horgan in exhibit E4 go beyond the events involving treatment to Mr B. Officer Horgan states therein: "I was driving for the day we attended a house in baulkham hills. The pt was on the floor in the loungeroom not far from the front door. Pt had a Hx of back pain and had hurt is [sic] sciatic nerve that day. Pt was started on methoxy I asked redo if he wanted morphine or fentanyl. He said fentanyl but also put the torniqet on as well. While I drew up 0.4ml of Fentanyl redo poped in a cannula. I wondered why. I put the atomiser on and gave it to redo. He took it off and said "I'll show you a little trick". He diluted the Fentanyl gave an unknown amount IV. He then gave another unknown amount IN. He said "I'll explain later". We took the pt to norwest private. When we were sitting in the car afterwards redo tried to explain how the dose works saying "he had measured out the doses before to know what he was giving, he also said that the way we give it is crap. It's surposed to be given IV, he stated that he had spoken to a doctor about it who he claims also thinks we should give it IV. He also stated "I trust you not to say anything" and "you just have to be careful who you do it infront of". He also stated that by giving it IN as well if the pt was ever asked they would say yes I had it IN. I then said "thats just to cover your arse" he said "well yeah". Later that day we also backed up a responder who had given an old lady 10mgs of morphine for a #NOF. While driving I heard noise from the back and realised redo had given fentanyl as well. I cannot prove how it was given. Woodbury Village On our first night shift early in the am we went to another lady with back pain. The job was near wentworthville leagues club. The lady was given methoxyflurane first. Redo couldn't find any veins so the fentanyl was given IN. However I did not see redo discard the rest of it at Westmead. On our last night we did a fat (illegible) job. A girl called ......... She had been at hawkesbury and was going to Westmead. She had IV fluids running already from hosp staff. I had swapped and was driving the truck because redo was tired. During the trip he gave fentanyl. I could not see clearly enough wether this was given IV or IN. When we were cleaning up at Westmead he said "this dosent have a good sharps container in it so I will get rid of this (the fentanyl) inside. I never saw it being discarded. 56In cross examination before Commissioner Tabbaa Officer Horgan confirmed that she made the handwritten notes contemporaneously as a record and aide to recollection, however, she did not take the notes with her to the interview with Ms Leitch or advise her of their existence (TR 3/2/11 pp68-70). 57Officer Horgan denied that she made the notes at a later date when this was put to her by Mr Edwards in cross examination. 58During the course of investigation Ms Leitch also interviewed Officers Wayne Blackburn and Ian Bird on 8 December 2009. The records of interview are found as an attachment to Mr Rochford's affidavit (Annex. F to Ex P8). 59It is appropriate to note here that Ms Leitch did not give any evidence. Messrs Voyzey, McCarthy and Rochford were required for cross examination. Mr Edwards sought to introduce the records of interview of Officers Blackburn and Bird which was met with a reply that they were not to be called by the Respondent and their record of interview is in evidence. 60At the time of interview Mr Blackburn was a Chief Paramedic Level 2 and had worked with Officer Redmond for about six weeks at Riverstone Ambulance Station between 5 September to 7 November 2009. 61Mr Blackburn was questioned by Ms Leitch in respect to 15 occasions fentanyl was administered to a patient, either by himself or Officer Redmond, in that period. Mr Blackburn could not recall the precise details of every event, however he could recall some and confirmed that on all occasions fentanyl was delivered intranasally. 62The information provided by Mr Blackburn was that the fentanyl phials and Mucosal Atomiser Devices (MAD) were kept in separate packages in the same place and that the officer administering fentanyl would be responsible for disposal of used items and writing up any discard of the drug, and for disposal of used implements at the hospital to which the patient was transported. 63Mr Blackburn could not recall any discussions with Officer Redmond concerning the method of delivery of fentanyl, putting that he was trained and accredited in the use of the drug and had only ever known of intranasal delivery. 64At the time of interview Mr Bird was an Intensive Care Paramedic based at Riverstone Ambulance Station. Mr Bird worked with Officer Redmond for five weeks in the period 2 August to 6 September 2009. 65Mr Bird was asked, by reference to Patient Health Care Records, to comment on four cases in which fentanyl was administered to a patient whilst he was working with Officer Redmond. 66Mr Bird could not recall the details of all of the events but could recall some instances. 67Mr Bird was clear that his practice was for disposal of used phials and equipment to be witnessed by his roster partner. 68Mr Bird informed Ms Leitch that he formed the view that Officer Redmond had a leaning toward fentanyl over morphine as he had spent some time following his change from level 5 to T1 using fentanyl without having access to morphine, had become used to it and had good results. 69When asked if there had been a discussion whether fentanyl might be better delivered intravenously than intranasally, Mr Bird put that it has been a topic of conversation for him and he certainly wondered why an intravenous regime was not kept. Mr Bird informed that he had no specific recollection but thought he could have discussed it with Officer Redmond, though never the prospect of departing from intranasal delivery in practice. 70Also attached to Mr Rochford's affidavit (Annex. G Ex P8) is a copy of the handwritten notes of interview taken by Ms Dawson on the occasion Mr Rochford, Mr Holland, Assistant Divisional Manager Gately and Ms Dawson interviewed Officer Redmond on 12 April 2010. 71These notes record Officer Redmond's denial of the allegations when they were first made; his concern that the initial interview process was heavily biased toward the complainant and against him; and his explanation that he was vague in the initial interview because there was nothing to recall. Consideration 72The views of the investigator or the final decision maker are not material to a consideration of the matter which now falls to be decided by the Commission on the evidence before it. 73The pressing issue to be decided upon the evidence is whether Officer Redmond administered fentanyl intravenously, mixed with the flush solution as alleged; or whether he did not. 74The standard of proof to be applied is the civil standard of balance of probabilities as helpfully discussed in Briginshaw v Briginshaw [1938] HCA 34. 75The more serious the allegation the more stringent the test to achieve the necessary comfortable satisfaction. 76As noted by the Full Bench in its Judgment the matter is not necessarily or helpfully approached from a position of a test of credibility of Officers Redmond and Horgan, but by objective and subjective analysis of the evidence. 77It is common ground that the Officers had not worked together before the night shift of the event. Officer Horgan was the driver and Officer Redmond the first response patient carer. 78On arriving at the residence of Mr and Mrs B they found Mr B laying on his lounge room floor with what is described as ten out of ten back pain, and Mrs B understandably anxious. 79Officer Redmond attended to Mr B. Officer Horgan was in and out of the house to obtain materials and the stretcher. 80The intervention can only be described as successful; Mr B ultimately being helped to walk to the front door then stretchered into the ambulance for transport to hospital. 81Officer Horgan drove the ambulance whilst Officer Redmond attended to Mr B. 82There is no argument that following assessment methoxyflurane was the first drug administered by Officer Redmond. There are various accounts of what took place after that. 83Officer Redmond's evidence that he has no specific recollection and has reconstructed events when questioned does not attract the conclusion levelled by the respondent that he is shifting his story to explain away misconduct. 84Throughout the entire process, from the first enquiry in March 2009 to the cross examination on remitter, Officer Redmond's evidence is consistent and unshaken in his denial of the allegation. He has attempted to answer the questions put to him. The questioning has been at times intense and over an extended period of time. 85Objectively considered it is entirely plausible that an officer of Officer Redmond's experience would act as his experience directs, attending to the detail of the treatment of Mr B. Officer Redmond's evidence and his experience leave open the conclusion that he reacted in the manner he regarded best for the patient at the time and moved on, the circumstances of Mr B blurring with a large number of other successful interventions. 86I find that the creditability of Officer Redmond's evidence is enhanced by his candid acceptance that he cannot remember, rather than a consistent rehearsed story with no corroborative support. 87There is corroborative support for Officer Redmond's best recollection in the statements of Mr B, Officers Blackburn and Bird, and Mr Voyzey. 88The insertion of a cannula for precautionary purposes which is then not needed occurs less often than recalled by Officer Redmond. 89The evidence of Mr Malcolm Voyzey, employed by the Respondent, is that of the 119 occasions on which Officer Redmond administered fentanyl without any other intravenous drug, he cannulated only five times. In some of those instances morphine was later administered, leading to a conclusion that in some of them it was not. 90Officer Redmond's reconstruction is supported by the information given by Mr B to the investigator. He stated that he was given the whistle (methoxyflurane); had something put up his nose; and was then cannulated. Mr B said that he was assisted in his recollection at the time by his wife who, five months later when ultimately interviewed could not be certain. 91The evidence is that Mr B responded gradually to the fentanyl, which is consistent with nasal delivery and inconsistent with intravenous delivery which the evidence suggests provides a much quicker response. 92The documentary evidence available to the Respondent included the Gourlay Report (MFI H1 at p714) which was created from the information provided by Mr McCarthy and Officer Horgan. The sequence of events in this report are: (1)Officer Horgan drew up 0.4 ml of fentanyl in a syringe, attached a MAD and handed it to Officer Redmond; (2)Officer Redmond said "I'll show you a little trick"; (3)Officer Redmond cannulated the patient; (4)Officer Redmond diluted the fentanyl with saline solution and administered the dilated fentanyl intravenously; (5)Officer Redmond drew up a second dose of fentanyl and administered it nasally; (6)Redmond then said "I will it explain in the car". 93Officer Horgan denies she saw Officer Redmond draw up a second dose of fentanyl, nor did she see him administer a second dose. 94The Gourlay Report then states: In the car Peter stated to Amanda "that he had done a lot of reading about it and that we should be giving it intravenously." " You just need to follow it up with an intranasal dose so if later questioned the patient will state that a drug was given up the nose." Amanda stated that he said he could only do this in front of people who wouldn't tell. His PHCR did not reflect the drug dose or route given. Also according to Amanda, a variation to Clinical Practise was not filled in. Amanda stated she did not do "straight talk" as she was initially intimidated by his comments and treatment. 95Also included in the Respondent's evidence is the Incident Information Management Systems Report (IIMS). 96Officer Horgan completed a report on 12 November 2009 (Attach. C to Ex P3). This report states in part: Principal incident type Medication / IV fluid Incident description Pt had 10 out of 10 back pain officer Redmond commenced analgesia with methoxyflurane. According to the phcr there was minimal affect with the methoxyflurane and officer Redmond requested fentanyl to be drawn up. I drew up 0.4ms (120mcgs) and attached the atomiser and handed the complete unit to officer Redmond. Officer Redmond then removed the atomiser and drew up 0.9% nacl in the same syringe that had the fentanyl in it. Officer Redmond then administered a portion of this solution IV. The remainder of the syringe was then given IN. What was the outcome for the subject? Unknown / Not specified Other: Pt's pain was reduced from 10 down to 2 97Officer Horgan completed a variation to this report at the request of Darren Hoshchke, Acting District Manager Sydney North Sector, which did not find its way into evidence. The two syringe argument 98The evidence is that a 1mm syringe with a MAD is used to administer fentanyl nasally, and a 10mm syringe is used to flush a cannula. 99The information provided by Officers Blackburn and Bird goes to the procedure for disposal of syringes used to deliver fentanyl and any of the unused drug. There is an emphasis upon a careful procedure which is founded on the fact that fentanyl is a S8 drug and must be handled in accordance with strict protocols. 100In her evidence before the Commissioner (TR 3/2/13, p72) Officer Horgan could not recall whether she or Officer Redmond took the fentanyl syringe to the ambulance for disposal (in the manner which Officer Bird put was the correct procedure), but was firm and clear that this had been done. Her evidence is: Q: So you, after the medication was given, that's when you went out to get the stretcher, is that right? A. Yes. Q. And who carried the kit back out to the ambulance? Was it you or was it Mr Redmond? A. I don't recall. Q. You don't recall. But you're quite certain that what would have happened was that the delivery system for the fentanyl would have been repackaged and taken out for use in the ambulance later if needed, is that right? A. Yes. Q. Certainly that particular item wouldn't have been left lying around Mr and Mrs B's house, is that correct? A. No. Q. Because one of the things in the protocols is you make sure you keep implements like that with you so that they're not left behind, is that right? A. Correct. Q. See, if I suggested to you that Mrs B says that she found on the coffee table after you departed a normal syringe, if you accept that that's what she says, that must mean that there were two syringes used on that day at Mr B's, is that right? A. I don't recall. 101Saline solution and the syringe to deliver it are not governed by S8 requirements and accordingly could not be expected to be handled with the rigour required of equipment used in association with a S8 drug. 102Mrs B found a syringe on her coffee table and there is no information available to determine whether it was a 1mm fentanyl syringe or a 10mm saline syringe. 103There is no contest between the parties that fentanyl was delivered intranasally (the issue is whether in whole or part intravenously). Officer Horgan prepared the syringe and MAD which can be safely concluded was a 1mm syringe. 104Further, in cross examination before Commissioner Tabbaa in respect to the handling of the syringe, Officer Horgan put (TR 3/2/11 p75): Q. ... And if I continue to use that terminology that that whole system, the syringe, the white nose cone and the line, you agree that normally that has to be kept clean for future delivery, is that right? A. Correct. Q. You put it in the packet to keep it clean? A. I do. Q. Yes. What do other people do with it then? A. I don't know what other people do. Q. And you have it, retain it, take it outside into the ambulance in case it's needed to deliver more of the fentanyl to the person on the way to the hospital. That is right, isn't it? That's what you've said? A. Correct. Q. I'm asking you, I'm suggesting that Mrs B has said that she found on her coffee table, immediately after you left, an ordinary syringe, okay? A. Okay. Q. Not an intranasal delivery system, an ordinary syringe, which is the plastic a better description which is the plastic with the plunger, absent the needle, is that right? A. Correct. Q. The syringe the term syringe does not include the needle, does it? A. Not to me, no. Q. So if I said to you she found an ordinary syringe on her coffee table, can you explain how an ordinary syringe, not the nasal system, was left on a coffee table at a patient's premises? A. No, I can't explain it. Q. One explanation is that there were two devices that day, the nasal delivery system with the white cone and an ordinary everyday syringe without any extra component. That is an explanation, isn't it? A. Yes. Q. And if there were two syringes in that fashion, what's happened is that Mr Redmond has used one to flush the cannula, do you agree that that's possible? A. Possible. 105Officer Horgan's evidence is that she did not see what Officer Redmond did with the vial of sodium chloride (TR 3/2/11 p77). She further responded in the following terms: Q. On your version. Answer, "Again", in other words, you are noting for your own answer that you're being asked whether you saw the fentanyl syringe again after the sodium chloride had been drawn up, is that right? A. Correct. Q. And you said, "No, I didn't". That's your answer, isn't it? A. That is correct. Q. So after the action of drawing what you say was drawing up the flush into the fentanyl syringe, you didn't see that syringe again, according to that answer, correct? A. Well, yes. 106In re-examination Officer Horgan responded to Mr Prince's question as to why she said she did not see the syringe again (TR 3/2/11 p93): Q. What did you mean when you said that? A. I meant that after I had drawn up the fentanyl, given it completely to Officer Redmond, he put some flush in it, he gave it to the patient IV. I didn't see what happened to the syringe after that. Q. I see. And you didn't know how much was given? A. No. 107The balance of probability is against both Officer Horgan and Officer Redmond leaving behind a syringe that was used to deliver fentanyl, particularly if it had been used incorrectly as asserted. 108The greater probability is that if Officer Redmond had misused the 1mm syringe to deliver fentanyl intravenously, it would be securely and permanently disposed of, not left lying on a patient's coffee table. 109There is a greater probability attached to the prospect that whilst attending to the protocols of fentanyl disposal, a second 10mm syringe used only to flush a cannula mid-treatment could be overlooked. 110The balance of probability on this point supports the account of events advanced by Officer Redmond. CONCLUSION 111I have considered the various versions of events advanced by Officer Redmond, Officer Horgan, and Mr and Mrs B who were the only direct participants. Mr and Mrs B's contribution is supportive of the version advanced by Officer Redmond. 112Objectively considered there is greater scope for Officer Horgan to misinterpret events as she was not the direct patient carer and was in and out of the lounge room where Officer Redmond was attending to Mr B. 113Mrs B remained there the whole time, albeit with a partial view; however, she was a most anxious and attentive observer at the time. 114It is completely understandable that the gravity of the moment led to some differences of perception and recall, however, on the significant points of cannulation after nasal delivery of fentanyl there is a consistency between Officer Redmond and Mr B. 115The interviews with Officers Blackburn and Bird support a conclusion that fentanyl delivered intranasally is a useful and effective treatment available to paramedics and preferred over morphine by Officer Redmond. 116The interview with Officer Bird disclosed that the use of fentanyl intravenously is a topic of conversation among paramedics, but not a practice. 117This information opens the probability that the topical nature of fentanyl and the means of delivery in theory and practice could lead to a misunderstanding by Officer Horgan. 118The notes produced by Officer Horgan reveal a constant suspicion on her part that fentanyl may be delivered intravenously whenever administered by Officer Redmond. 119There is no substantive evidence that supports an intravenous delivery of fentanyl as alleged, or that would diminish the probability that the innocent explanations put by Officer Redmond are anything but accurate. 120 The evidence of Officer Horgan that Officer Redmond confided in her in the circumstances described on the very first occasion they worked together is difficult to reconcile. 121I find that such a confidence is highly improbable. 122It is more likely that Officer Horgan misconstrued the discussion in the aftermath of the treatment administered to Mr B. 123The conversation was said to take place in the ambulance after Mr B had been transferred to the care of hospital staff and the Officer's job, which was a successful intervention, was completed. 124Officer Redmond denied the conversation in remitter in the following terms (TR 19/4/13 pp87, 88): Q. There's no doubt you took the patient to Norwest Private Hospital and performed a handover with staff there? A. That's true. Q. You and Ms Horgan were sitting in the ambulance following the handover, weren't you? A. I was in the ambulance doing my paperwork, I don't recall where she was. Q. At some stage, certainly after the handover, you must have been in the ambulance with Officer Horgan, you were on duty together? A. Yes, we were in the ambulance together on our way to the next job. Q. She says that you said to her, "I have measured out" and I'm reading from paragraph 11 if you want to follow: "I have measured out the doses before to know what I am giving. The way we give it is crap; it's supposed to be given IV, that's intravenously, I've spoken to a doctor about it" You gave the name of the doctor but she can't recall it: "who claims we should give it IV. I trust you not to say anything; you just have to be careful who you do it in front of." Do you deny saying that? A. That never happened. Q. She also recalls that during that conversation you said: "You must also give it intra nasally as well so that if the patient is ever asked they will say, 'Yes, I had it intra nasally', that's just to cover your arse." You said that to her didn't you? A. I didn't say any of that. Q. Sorry, I made a mistake, she says that she said "That's just to cover your arse" to which you replied, "Well, yeah", you disagree with that? A. I totally disagree with that. 125The often quoted passage by Dixon J in Briginshaw is apposite. His Honour said (60 CLR 336 at 360): At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded. The distinction obtained long before the publication in 1824 of Starkie's Law of Evidence; but the form in which the higher standard of persuasion is described is said to have been influenced by passages in that work. The learned author, who occupied the Downing Chair of Common Law, wrote:-"It is to be observed, that the measure of proof sufficient to warrant the verdict of a jury varies much, according to the nature of the case. Evidence which satisfies the minds of the jury of the truth of the fact in dispute, to the entire exclusion of every reasonable doubt, constitutes full proof of the fact; absolute mathematical or metaphysical certainty is not essential, and in the course of judicial investigations would be usually unattainable. Even the most direct evidence can produce nothing more than such a high degree of probability as amounts to moral certainty. From the highest degree it may decline, by an infinite number of gradations, until it produce in the mind nothing more than a mere preponderance of assent in favour of the particular fact. The distinction between full proof and mere preponderance of evidence is in its application very important. In all criminal cases whatsoever, it is essential to a verdict of condemnation that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt" (1st ed. (1824), pp. 450, 451; 4th ed. (1853), pp. 817, 818). When, however, he passes to the standard of proof in other cases, he describes it in less positive and definite terms (1st ed. (1824), p. 451; 4th ed. (1853), p. 818):-"But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale. This happens, as it seems, in all cases where no presumption of law, or prima-facie right, operates in favour of either party; as, for example, where the question between the owners of contiguous estates is, whether a particular tree near the boundary grows on the land of one or of the other. But even where the contest is as to civil rights only, a mere preponderance of evidence, such as would induce a jury to incline to the one side rather than the other, is frequently insufficient. It would be so in all cases where it fell short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law." This mode of stating the rule for civil issues appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue. In the course of a discussion of the matter containing no less wisdom than learning, Professor Wigmore says:-"In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain. But it is customary to go further, and here also to attempt to define in words the quality of persuasion necessary. It is said to be that state of mind in which there is felt to be a preponderance of evidence in favour of the demandant's proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in many precedents sundry other phrases-satisfied, convinced, and the like-have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial effort" (Wigmore on Evidence, 2nd ed. (1923), vol. v., sec. 2498). It is evident that Professor Wigmore countenances as much flexibility in the statement and application of the civil requirement as did Mr. Starkie. 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. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. 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. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. 126The misconduct of which Officer Redmond is accused is most serious, so much so as to amount to a grave moral delinquency, to use the words of Dixon J. 127The difficulty with the evidence in this matter is that the only direct evidence is that of Officers Horgan and Redmond and Mr and Mrs B, all of which suffers from distraction and uncertainty. 128Mr B was distracted by the pain he was suffering and Mrs B by her concern for her husband. Officer Redmond is not seized of any specific recollection, reconstructing events from a mixture of memory and his routine practices. 129The only other evidence, as opposed to the testimony of those who were told versions of the events, is that of Officers Blackburn and Bird in their interviews with the investigator, Ms Leitch. This does not arise above general procedure, their observations of Officer Redmond and the fact that the use of fentanyl was a topic of professional conversation among some officers, possibly including Officer Redmond. 130The body of evidence in this case contains no exact proof. 131The presence of the cannula enables the intravenous administration of fentanyl, it does not prove that it happened; as the absence of a cannula would prove that it did not. 132The reporting of Mr B's treatment, in the PHCR, the IIMS report and to Officer Gourlay, is replete with inconsistency and contradiction so as to be virtually valueless for present purposes. This evidence goes no further than establishing that Officer Horgan counter signed the PHCR, recording a completely orthodox treatment of Mr B, albeit with some absence of detail such as cannulation, then had second thoughts, reporting what she believed she observed as an improper administration of fentanyl. This is not proof but accusation, the truth of which is not made good by the vigour in which it is put and the number of people it is reported to. 133In the absence of any direct proof a consideration of the weight of evidence and probability of the misconduct is the final resort. 134An appropriate starting point for such consideration is Officer Redmond's 22 years of exemplary service which is of itself supportive of a view that he would be unlikely to act other than in the required manner, his record says that he does. 135The next consideration apposite is the likelihood that Officer Hogan was mistaken in her observations. The capacity for her to misinterpret what she saw is increased by the fact that she was not in the room the entire time that Mr B was being attended to, and by the two syringe hypothesis. 136The two syringe hypothesis is supported by Officer Horgan's lack of recall of disposal of the fentanyl syringe and her evidence that it would have been disposed of in the required manner. Proper disposal of the fentanyl syringe would result in a 10mm syringe, used to flush the cannula, being left on the coffee table at Mr and Mrs B's residence. This is further supported by the fact that Mrs B said she found a syringe, not fitted with a MAD as was attached to the 1mm fentanyl syringe. 137I accept that Officer Horgan held Officer Redmond in high regard as a senior officer, however, it is difficult to accept as she suggests that when he said: "I will show you a trick" and proceeded to administer fentanyl intravenously, she said nothing and signed off on the treatment. 138In my view it is highly improbable that Officer Redmond would confide in Officer Horgan in the manner she deposed occurred in the ambulance after delivering Mr B to hospital. It is totally counter intuitive to put to someone on the first occasion they have worked together: "Only do this in front of someone you trust". 139If one pursues the logic of this hypothesis, Officer Redmond had no basis to trust or mistrust Officer Horgan. 140The balance of probability and weight of evidence is against a conclusion that Officer Redmond administered fentanyl intravenously to Mr B and in favour of a conclusion that Officer Horgan misinterpreted what she saw and heard, arriving at a genuinely held but mistaken belief of misconduct. 141I determine that Officer Peter Redmond should be reinstated to his former position of Ambulance Officer with no loss of wages or continuity of service in accordance with Orders attached hereto. ORDERS 1. Pursuant to section 89(1) of the Industrial Relations Act 1996 the Ambulance Service of New South Wales is ordered to reinstate Mr Peter Redmond to the position of Ambulance Officer Grade 2 with effect from 17 June 2013. 2. Pursuant to section 89(3) of the Industrial Relations Act 1996 the Ambulance Service of New South Wales is ordered to pay Mr Peter Redmond an amount equal to the remuneration he would have earned but for being dismissed, less any remuneration earned from paid employment or unemployment benefits of any kind in the period from termination of employment to reinstatement. 3. Pursuant to section 89(4) of the Industrial Relations Act 1996 the period of employment of Mr Peter Redmond by the Ambulance Service of New South Wales is taken not to be broken by the termination of that employment subject to these Orders. I so order. R W Harrison 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. Decision last updated: 31 May 2013