Australian Salaried Medical Officers' Federation (New South Wales) (No 2) v The Secretary of Health

Background

1. In Health Services Union NSW v Director General NSW Ministry of Health [2013] NSWIRComm 21 Staff J, sitting as the Industrial Court of New South Wales, was asked to make a declaration as to the correct application of cl 12(ix) of the Public Hospital (Medical Officers) Award. He made the following declaration: Declare that employees covered by the Public Hospital (Medical Officers) Award who provide a "clinical appraisal" over a telephone or by email, rather than via a computer, have provided a "clinical appraisal remotely" without onsite presence and are entitled to a minimum payment of one hour's pay at overtime rates pursuant to cl 12(ix) of that Award.
2. Clause 12(ix), at the time of his Honour's decision, was in the same form as set out above, however subcll (xi) and (xii) were not included. The particular issue his Honour was asked to resolve was "what constitutes a clinical appraisal"? [4] More specifically, the question answered by his Honour was what is meant by the words "clinical appraisal remotely"? His Honour answered as follows: "185 I turn to consider having examined the evidence and in accordance with the principles and authorities to which I have earlier referred, the meaning of the word "clinical appraisal remotely". 186 The definition of "clinical" includes, [relating to] "the course of a patient's disease and noting the symptoms and course of that disease". In my view, and I find, that the words "clinical appraisal remotely" should be read as meaning "assessing [by an on-call resident medical officer or registrar] a patient's physical condition to make a diagnosis or a differential diagnosis away from a hospital that incorporates the following: 1. The taking of a telephone call or receiving an email from a medical practitioner on duty in a hospital. 2. Receiving the history of the patient so that the patient's current medical condition and any relevant past medical history including use of medications, if known, is provided. 3. Discussing with the medical practitioner on duty the patient's current medical condition and asking questions in respect of the condition as necessary such that the information provided enables an evaluation of the patients' physical condition. 4. Directing further examination to be conducted as clinically required. 5. Identifying the likely cause of the patient's condition and providing a prognosis based on the information provided. 6. Ensuring that there is a sufficient clinical justification for the proposed treatment including, if relevant, admission to hospital. 7. Instructing the hospital medical officer what course of treatment should be followed including ensuring the proposed treatment is not contra-indicated. This would include developing an interim management plan. 8. Directing follow-up requirements and subsequently reviewing the patient, if appropriate, based on those requirements. 9. Keeping an appropriate record of the discussion with the medical practitioner who is on duty. 187 I accept that the findings reached and the decision that I have made may result in an incomplete resolution of what the parties have sought in this matter. However, it provides, in my view, guidance for the future in respect of the interpretation of the words "clinical appraisal remotely" as found in cl 12(ix) and whether an entitlement to payment arises under that clause.
3. It will be observed that there is substantial similarity between the matters listed at [186] of his Honour's judgment and those listed in cl 12(xi) (a). There are also some important differences including the inclusion of the word "all" before the list of incorporated factors and the variations to subparas 7 and 9. I shall return to the effect of those differences later in these reasons.
4. It is worthwhile noting his Honour's concluding remarks at [187]. Even without taking into account the variations to the Award which followed an appeal from his Honour's judgment, the declaration made left some open questions.
5. As noted, there was an appeal from his Honour's judgment, filed by the respondent. The Application for Leave to Appeal and Appeal in Matter No IRC 253 of 2013 was Annexure BO-1 to the statement of Brett Oliver (Exhibit 12). The only respondent named in Annexure BO-1 was the Health Services Union NSW ("HSU"). The appeal was resolved on terms including a variation of the Award by adding into cl 12 subcll (xi) and (xii). Also annexed to Dr Oliver's statement were: 1. a document entitled "MATTERS TO BE PLACED ON RECORD RE VARIATIONS TO THE MEDICAL OFFICERS AWARD"; and 2. a draft Policy Directive entitled "PAYMENT TO MEDICAL OFFICERS UNDERTAKING A CLINICAL APPRAISAL REMOTELY".
6. The "matters placed on record" and the draft policy were respectively annexures BO-2 and BO-3. I note that the documents were also marked MFI 1 and 2, apparently in the proceedings for the making of the Award variation. Annexure BO-5 to the statement was the current Policy Directive, which is in the same terms as the draft. Annexure BO-2 refers to the "parties" and the "Unions". The former undoubtedly includes at least the respondent and the HSU.
7. The Award defines "Union" to mean "the Health Employees Union NSW and the Australian Salaried Medical Officers' Federation New South Wales". That form of the definition has been in the Award since 14 December 2012. It follows that the variation to the Award made by consent of the parties in December 2013, as part of the settlement of the appeal, would have included ASMOF as a party.
8. Accordingly I have understood the terms "parties" and Unions" as used in Annexure BO-2 to include ASMOF. There was no suggestion to the contrary [5] .
9. The respondent relied heavily upon the obligation by claimant's to comply "with relevant NSW Health and local policies, procedures and directions" as specified in cl 12(xi)(a)9. The Secretary noted that it was a term placed on record in connection with the settlement of the appeal that: "The Unions recognise and acknowledge: (a) the right of the Ministry to issue a Policy Directive dealing with the necessary requirements for a medical officer to establish an entitlement to be remunerated for undertaking a 'clinical appraisal remotely' within the meaning of clause 12(ix) of the Award; (b) that the wording of a draft Policy Directive provided to Unions on 20 November 2013 had been subject to considerable discussions between the Ministry and the Unions, and that the Ministry regarded this wording as constituting an integral part of the total settlement of the dispute between the parties under which it consented to the Award variation." (Emphasis added)
10. The Policy Directive includes an application form which officers seeking payment must complete. It was the subject of much debate between the parties and it will be necessary to return to this issue in due course.

Award interpretation

1. There was no disagreement between the parties as to the authorities on the principles of award interpretation. In Fire Brigade Employees' Union of NSW v Fire And Rescue NSW [2020] NSWIRComm 1022 I said: "7 The principles for the interpretation of awards are reasonably well settled: Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 at [10] - [16]. The last decision referred to by Commissioner Seymour in that review of the authorities was Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23. In that decision, after an extensive review of the authorities Walton J, President, provided the following summary at [115]: "Putting aside for one moment the refinements applicable to award interpretation to which Street and French JJ alluded, these statements of principle may be synthesised as follows: (1)The legal meaning of 'a provision of an award' is to be ascertained through a process of construction by which the intention of the provision is deduced. It is the duty of the court to give the words of the award a meaning that the authors of the award are taken to have intended them to have; (2)The process of construction must begin with a textual analysis of the words of the provision, that is, a consideration of the ordinary and grammatical meaning of the words; (3)Whilst the surest guide to the meaning of an award provision is language used in a provision of an award, the meaning of the text may require consideration of the context (which includes, inter alia, consideration being given to the instrument as a whole). Thus, the initial step to construction may involve construing the words of an award provision in context; (4)The consideration of the words of the provision of an award in context includes examining the general purposes and the policy of the provision derived from a statement of policy in the award or from the terms of the award. Thus, the legal meaning may be ascertained by reference to general purpose, consistency and fairness, although, again, the purpose of a provision derives in its text and structure. A relevant consideration in this respect is the mischief remedied by a provision. (See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].); (5) An examination of the purpose of an instrument is very much part of the traditional approach to award interpretation. It was accepted by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops [1961] AR (NSW) 312 at 314 that it is proper to pay regard to "the purposes for which a provision is intended" (as quoted in Bryce v Apperley at 452 and Kingmill at [63]). An application of this approach may be found in the judgment of Hill J in Australian Workers Union (NSW) v Pioneer Concrete (NSW) Pty Ltd (1991) 38 IR 365 at 380, where it was stated that provisions in awards must be construed reasonably and realistically, "having regard to their purposes and objectives". I will add further to this consideration when returning to the notion, developed in the dicta of Street and French JJ, that a generous construction should be adopted in the interpretation of awards; (6)The determination of the purpose or intention of a provision of an award neither permits nor requires a search for what those who drafted or made the award had in mind when the award was made: see Construction, Forestry, Mining and Energy Union (NSW Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [44] and NSW Fire Brigades at [47]. Further, it is not for the court to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision: see Brown at [40] (Bathurst CJ)." (Emphasis added) 8 The "refinements referred to by Street and French JJ" were those in their Honours' decisions in George A. Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 [3] respectively. In Bond Street J said: Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relations as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. (Emphasis added) In City of Wanneroo French J said to like effect at [53] and [57]: 53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to "... the entire document of which it is a part or to other documents with which there is an association". It may also include "... ideas that gave rise to an expression in a document from which it has been taken" - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; 46 IR 128 at 134 (Burchett J); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of Commonwealth (1998) 82 FCR 175; 80 IR 345 (Marshall J). ... 57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. (Emphasis added) 9 The last decision warranting specific recognition in this matter is the decision of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182. In an oft quoted passage his Honour said: "It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. (Emphasis added)
2. I will apply these principles in the disposition of this matter.

Evidence

1. The statements filed by both parties contained a good deal of "opinion" evidence which was the subject of objection. To their credit both counsel took a practical approach and agreed that it was open to the other side to make submissions as to the weight which might be attributed to that evidence without the need to cross-examine the witnesses about such matters. Nevertheless some witnesses were cross-examined so as to better understand the reasoning underpinning their opinions.
2. The notifier read 2 statements of Dr Moonen, and a statement from each of Dr Simon Mylabathula, Dr Anthony Joseph and Dr Tony Sara. Drs Joseph and Sara were not required for cross-examination. The respondent read statements from Dr Tamsin Waterhouse, Associate Professor Dr Ian Rewell, Dr Brett Oliver and Associate Professor Dr Rooshdiya Karim. All but the last were cross-examined.

Dr Moonen's evidence

1. Dr Moonen interned in 2013 before undertaking 2 years of Basic Physician Training under the auspices of the Royal Australian College of Physicians and then a further 2 years as an Advanced Trainee.
2. In her statement Dr Moonen said that she worked primarily at Royal Prince Alfred Hospital ("RPA"). She had completed a rotation at Bankstown Hospital in the second half of 2017, and then worked at Orange Base hospital until 11 February 2018 before resuming at RPA.
3. At Bankstown she was required to be on call on 1 weekend in 4, while at RPA she was required to participate in a 1 in 4 on call roster including both weekdays and weekends. She described on call responsibilities in the following terms [6] : "When on-call, I am required to make myself constantly available to provide clinical support outside rostered hours. For the on-call period, I am required to be available at all times to answer my phone, as well as required to be located within 20 minutes from the hospital in case of a call-back to review any critically unwell patient. If I want to go to dinner with my family, I must have my phone and notepad on the table, and I often excuse myself several times through a meal to complete remote clinical appraisals."
4. As to the frequency of calls she said [7] : "The frequency of calls and call-backs varies between specialisations. Areas with a high number of admissions like cardiology, respiratory medicine and neurology tend to get a lot of calls and call-backs. Other areas with smaller numbers of admissions (infectious diseases, for example, or immunology) have fewer calls and call-backs. Other areas like endocrinology take a lot of calls but are rarely called back. All of those areas are paid the same on-call allowance." … When on-call at Bankstown, I would typically receive between 1 and 10 calls per hour during the day, and between 1 and 10 calls overnight. At RPAH I would typically receive between 1 and 20 calls per hour during the day, and between 5 and 20 calls overnight. On a busy on-call weekend shift at RPAH, between Saturday 8am and Monday 8am, I would receive more than 100 calls. By leave, Dr Moonen was permitted to add to her evidence in chief. On the topic of call frequency she said [8] : "Q. Doctor, were you on call last night? A. Yes, I was on call covering Bankstown Hospital, where I have been seconded for the next 5 weeks. Q. What about today? A. Today I am currently on call, though I'm being covered in the hospital to an extent by another registrar. Q. Did you get any calls last night? A. I did indeed. Q. How many? A. I had, when I looked through my phone, a total of sixteen calls between the hours of 5pm and 8am this morning. Q. Were they distributed throughout that period; were there more in one period than another? A. So between the hours of 5pm and 10pm I had the majority of the calls. That would have been approximately half. And then there were approximately six calls between the hours of 10pm and 2am and then this morning, from 6am to 8am, there were another couple of calls." (Emphasis added)
5. The nature and subject matter of the calls varied. The majority of calls she received were from an Emergency Department ("ED") registrar who "needs to know whether a patient should be admitted to the cardiology ward or discharged". Such calls require her to clinically appraise the patient. Other calls may be:

• From junior doctors or nurses in the cardiology ward, about patients already admitted, when an event occurs such as the return of a blood test or if the patient becomes unstable or complains of a new symptom;
• Doctors in other wards of the hospital reviewing patients who have developed cardiac problems;
• Pathology or radiology services reviewing biopsies or scans of cardiology patients who detect something requiring to be brought urgently to the attention of someone involved in the patients management;
• From doctors in other hospitals requesting a patient transfer or advice and others such as GPs requesting advice on patient management or patients or their relatives requesting information.

1. The assertion by Dr Moonen about the calls from the ED about admissions became the subject of considerable attention in the hearing. I deal with this more fully below under the heading Admissions, but in large measure it did not assist in the resolution of the question of what constitutes a "clinical appraisal remotely" within the meaning of the award. I shall explain why when I deal with the evidence on the matter.
2. Dr Moonen did not think that, if a pathologist considers a result should be reported urgently to her, it would involve a clinical appraisal in every case [9] . She did not elaborate on what, in her opinion, would distinguish such calls as requiring clinical appraisals and those which did not.
3. One of the requirements of the Award is compliance with policies. That is one of the significant differences I refer to at [9]. Staff J's list simply required the doctor to keep "an appropriate record of the discussion with the medical practitioner who is on duty". The Ministry's policy requires the doctor making a claim for a remote clinical appraisal to certify that they have updated the patient's medical record at the earliest opportunity. Under cross-examination Dr Moonen accepted that when she certified that she had updated the record that was not correct. She explained [10] : A. Well, I mean, it does also say, yeah, in a manner that ensures the continuity of patient care. I mean, once the patient is admitted, you know, two days later when I have the opportunity to make a note in the report, it contributes in no way to the continuity of patient care. So, I mean, it is just an irrelevancy. But, I mean, I see what you are saying, should I have put a note in there because this form specify that I do: correct, yes. Q. Correct in the sense that you didn't do it? A. Yeah. I wouldn't have written something about this patient. I would have reviewed the note that was made at my earliest convenience. But I didn't specifically write a note to say I had been called and this is what advice I have given.
4. Although Dr Moonen considered the requirement to certify was an unnecessary aspect of the policy, she agreed it was a requirement and said that in all cases she had gone back and updated the record [11] . Dr Waterhouse said she would have approved at least one of Dr Moonen's claims (Claim 8) if she had updated the record. In her evidence on 4 July Dr Moonen agreed she understood that and said she had updated the medical record but her claim had not been processed [12] . Dr Waterhouse gave evidence on Monday 9 July that she had, on Friday 6 July, checked the medical record in respect of the patient the subject of Claim 8 and it had not been updated by Dr Moonen [13] .
5. I prefer the evidence of Dr Waterhouse in this respect. Each of Dr Moonen's claim forms was attached to her statement (Exhibit 1). In each form she certifies that she has, among other things, updated the patient's record at the earliest opportunity. My acceptance of the evidence of Dr Waterhouse as to the state of the medical record means that both the claim form and Dr Moonen's evidence before me were incorrect. That is confirmed by Dr Moonen's own evidence referred to at [28] although inconsistent with her evidence at [29].

• received a call from Dr Karim (10 minutes);
• received (presumably from Dr Karim) a patient history including current medical condition and any relevant past medical history;
• discussed with the on duty medical practitioner the patient's current medical condition, asked questions in respect of the condition as necessary such that the information provided enabled an evaluation of the patients physical condition;
• directed further examination to be conducted as required, and obtained other clinical information or opinion from other medical practitioners as necessary;
• Identified the likely cause of the patient's condition and provided a diagnosis and a prognosis based on the information provided;
• Ensured that there was sufficient clinical justification for the proposed treatment including, if relevant, admission to hospital;
• Instructed the on duty medical practitioner what course of treatment should be followed, including ensuring the proposed treatment is not contra-indicated, being satisfied that such treatment is able to be determined, and can be properly implemented, without requiring the return of the on-call resident medical officer or registrar. This would include developing or confirming a management plan, or varying an existing management plan with the endorsement of the staff specialist or VMO responsible for the care of the patient (5 minutes);
• Directed follow-up requirements and subsequently reviewed the patient, if appropriate, based on those requirements (5 minutes); and
• Complied with the relevant NSW Health and local policies, procedures and directions The "Total Time" is recorded as 10 minutes. It would appear that Dr Moonen has also recorded the total time against the first item and then shown against the seventh and eighth items how that time was applied to each of those requirements.

1. The form also has provision for a summary of the Appraisal provided. In that section Dr Moonen recorded: "Call from on-duty pathologist regarding results of a pathological specimen evaluation Pathologist requesting clinical information about the patient and guidance on further testing based on the patient's history and condition Via phone: •Discussion about reason for test, preliminary result of test, and possible other tests that could be undertaken •I advised on further tests that were required •I agreed to follow-up the patient's result and arrange further investigations as required -The on-site medical officer updated the patient's medical record"
2. Associate Professor Karim set out in his statement [14] his recollection of the call. He said: "4. On the evening of Friday 2 March 2018 I contacted Dr Avalon Moonen to inform her of the results of a cardiac biopsy that had been performed on a patient with medical record No: …….. 5. I contacted Dr Moonen as she was the Cardiology Registrar oncall according to RPA Switch. I had tried to contact Dr Brian Bailey (the requesting doctor) but had been unable to reach him. Dr Moonen indicated that she knew of the patient. 6. I rang Dr Moonen to find out more clinical information about the patient and to inform her that no amyloid had been found on histology. 7. During the call I also said that the ultrastructural assessment was being performed at Concord Hospital and that their result would take some time - often a few weeks. I offered to send the case away for an expert opinion from St Vincent's Hospital's Pathology Department, SydPath, as they had more cardiac experience than we did at RPA. 8. Dr Moonen said that she would let the team know next week and she didn't think they would need another opinion as the biopsy was primarily to assess for amyloid. I emphasised that I was happy to seek the extra opinion but it would not happen unless she or another member of the clinical team contacted me to request that. 9. I have this information recorded in the hospitals internal patient's report from that evening."
3. As I have noted Dr Karim was not required for cross-examination. A comparison of the two accounts is interesting. Dr Moonen's summary casts the call as one in which Dr Karim advised results, requested more information about the patient and sought guidance on further testing. All of that accords with Dr Karim's account. The singular difference between the accounts is that Dr Karim offered a further test which Dr Moonen doubted would be required rather than her advising "further tests that were required". The impression created in Dr Moonen's claim form is that she is providing advice rather than receiving it. The former may involve a clinical appraisal the latter, without more, would not. I assume it was on that basis that the claim was made although subsequently abandoned.
4. The concern I have is that Dr Moonern asserted and certified that she had completed all of the requirements listed at [30] when clearly she had not done so. Neither account suggests that Dr Moonen "received a patient history" or 'provided a diagnosis and a prognosis" or "instructed the on duty medical practitioner what course of treatment should be followed" as Dr Moonen certified.

Dr Mylabathula's evidence

1. Dr Mylabathula is a Staff Specialist Cardiologist working within the Hunter New England Health District. He had no direct knowledge of the claims made by Dr Moonen and had not had access to the clinical notes relating to each claim. The doctor provided his opinions in general terms.
2. In relation to admissions into hospital he said, after acknowledging the existing policy for direct admission from the ED he said that [27] : "7. An emergency department medical officer makes a telephone call to the inpatient team. On availability, acceptance of admission and clinical handover to the inpatient team can happen after physical review or via telephone. 8. After hours, a telephone acceptance of a patient's care is the commonly followed procedure because of the need to find an accepting inpatient team medical officer in a timely fashion. It can be the Consultant or his delegate who is a Registrar. 9. Some of these telephone calls may require a trip to the hospital, but most involve advice and acceptance of care over the telephone. Whether it is telephone acceptance or visit based acceptance of patient care, the responsibility and liability remains the same. Thus, it is important for any specialist (or their delegate) when accepting admission and legal responsibility for a patient that they reach their own view about diagnosis and management, even in cases where the calling clinician has an existing diagnosis or proposed management plan. Often opinions overlap, however at times you will need to challenge the original diagnosis and/or adjust the treatment plan. These are patients with acute illness and the telephone calls are about patient safety. Sometimes even after the call and remedies provided, one may have to still make a quick return trip to the hospital to ensure safe patient care is being provided as resident hospital doctors simply do not have the experience."
3. As to "afterhours clinical support" he said [28] : "Current models of care in NSW heavily depend on these doctors in training to take a telephone call when it pertains to patient care. This telephone call is not a formality. The telephone call leads to listening to a hospital based medical officer, asking leading questions, using technology where appropriate, forming an opinion, accepting admission and taking responsibility for this patient care, life and outcome. … The on-call clinician will need to triage the call and decide whether it is a matter which requires a return trip/ advice/ acceptance of care. All of which carry the same high level clinical responsibility, especially in the field of Cardiology. The liability risk commences the minute the telephone call commences as the conversation about the care will be documented by the consulting clinician."
4. Dr Mylabathula considered the claims made by Dr Moonen and, with the exception of Claim 7, he was of the opinion that each claim involved a remote clinical appraisal. He said [29] : "Having gone through the remote clinical appraisal claims, I believe they would have required an experienced medical officer to attend the hospital if the mobile telephone facility was not available, as I am of the opinion there was a need for an additional medical officer's assistance in each instance …The claims relate to either (1) a significant change to the patient's situation, (2) a new development in an already unwell patient, (3) new admissions that warranted immediate treatment related decisions or (4) a qualified medical officer to take over the responsibility of the patient. These are time sensitive decisions for which the hospital doctor sought advice. It would be clinically inappropriate to delay until the next working day. I add, these cases are not your standard cross specialty routine consultations in a stable patient. It is a case of unwell patients needing urgent treatment related decisions which the hospital doctor could not provide for whatever reason." (Emphasis added)
5. The emphasised clause in [46] is interesting in light of the doctor's cross-examination. He was asked to explain his reasoning in relation to several of the claims and he drew a distinction between advice and clinical appraisal. He said [30] : Q. So is it your evidence then that, if the call is made after hours, and there is a call about some sort of clinical advice or discussion, then that would typically amount to a remote clinical appraisal? A. See, I like to draw the difference between an appraisal and advice. They are two distinctly different things. And I don't want to explain on what is the difference, but at that level, when there is a clinical question raised by a doctor in the hospital, there is a lot of discussion that goes on, a lot of discussion that goes on around the patient. It is not about, I need a bed. Can I give this person Panadol. And the answer is a quick yes or no. That practically happens very, very rarely. It is always there is some discussion with some leading questions because there is going to be an outcome of that conversation, and that can have patient safety implications. So it is never a snap quick word advice. (Emphasis added)
6. Regrettably, from the Commission's point of view, Dr Mylabathula did not explain the difference between clinical advice and clinical appraisal. The emphasised passage in his statement seems to be an acceptance of the existence of a difference. Some insight into his meaning is found in his description of "routine cross speciality consultations" and seeking to distinguish those from clinical appraisals. The latter he described in cross-examination as [31] : "A. If it involves obtaining adequate history, going to some investigations, verifying and validating what is going on, and the outcome is validated, and this doctor's name is going to be recorded as the person who validated that management, yes, that is clinical appraisal" Q. In other words, it's not all advice, as I understand your evidence, but it's the type of advice that satisfy the criteria in the award? A. So this is one of our problems because there has been a lot of this service being provided by these doctors. It's a 15 minute phone conversation which is not transcripted. It's never going to be word for word. But doctors at this stage are trained not to have a cursory discussion because that leads to patient safety errors, and there is strong emphasis to avoid that. So I assume that a good and wholesome discussion happened, but it will be hard to put all those words into the notes. Q. But do you accept then that there are some wholesome discussions that might occur that nevertheless do not amount to a remote clinical appraisal? A. See, after hours for a hospital doctor, to call advance training [sic: trainee] who spent 12 hours and just went home, they think twice before they disturb that person. And that is across, and I worked in several States in Australia, doesn't matter where you work, it is the same story. A lot of thinking and conversation goes around before making that call, and there is a purpose in that call. So to say it was not a clinical appraisal, but an informal rather chat about a patient, I don't agree. There is usually a clinical reason for that call, and there was a patient outcome that was contributed to by this doctor. (Emphasis added)
7. Mr Dixon pressed him to explain in more specific terms but the witness said he was unable to do so without access to more information.
8. I understood the general thrust of his evidence to be that hospital staff think carefully before ringing the on call practitioner and when they do so it is because they require clinical advice from the latter. That clinical advice will, usually, amount to a clinical appraisal. That was also the thrust of the evidence of Drs Joseph and Sara.

Dr Joseph's evidence

1. Dr Joseph is a Senior Staff Specialist in the ED and Director of Trauma at Royal North Shore Hospital (RNSH), and Clinical Associate Professor, Sydney Medical School, University of Sydney. He said in his statement [32] : "In my opinion, anytime a medical practitioner is asked for an opinion regarding the clinical condition of a patient and/or investigation or treatment, this will involve an assessment of the whole patient (including history, examination, appropriate investigations and treatment) either consciously or unconsciously. This would constitute a "clinical appraisal" and could take on average between 10-20 minutes. Acceptance of an admission by the on call medical officer on behalf of the appropriate Specialist requires all of the above conditions to be completed and this is consistent with an appropriate "clinical appraisal" as described in the Award."
2. Dr Joseph drew a distinction between requesting a monitored bed and accepting an admission. He said [33] : "I agree that a request to approve a bed only does not include a "clinical appraisal". For example, the on-call registrar may be asked to approve a monitored bed where the patient has already been accepted by an inpatient team - normally by the Specialist. However, if this has not yet occurred, and the patient is admitted under the inpatient specialty team that is being covered by the on-call registrar, this amounts to a transfer of both care and the medico­legal responsibility for the patient to the admitting team, and a "clinical appraisal" would be required as occurs in any clinical handover of care."

Dr Sara's evidence

1. Dr Sara is a Senior Staff Specialist employed by South East Sydney Local Health District. He is a Fellow of the Royal Australian College of Medical Administrators. He was at the time of giving his evidence President of the notifier. He had particular experience in connection with health records. He said [34] : "I have been involved with health records documentation policy and practice for some decades, and played a significant role in assisting Legal Branch and the Strategic Communications Branch with the development of the current health care records Policy Directive, PD2012_069. I have chaired the NSW Health State Forms Management Committee for about 10 years which develops, endorses, and authorizes the publishing of clinical forms to be used in health records, on behalf of the MoH/the Health Administration Corporation, under the Policy Directive PD2009 072."
2. Dr Sara drew attention to paragraph 2.15 of the health care records Policy Directive, a copy of which was annexed to his statement, and asserted that consistent with that paragraph [35] : "the obligation to make a health care record in relation to the taking and recording of advice lies with the clinician seeking that advice rather than the clinician providing advice."
3. It is convenient to recall at this point that the application form referred to at [15] requires the applicant to certify, among other matters that [36] : "I have updated the patient's record for the patient in respect of whom the appraisal was provided at the earliest opportunity".
4. Dr Sara added his support for the argument that the requirement was otiose He said [37] : "This makes eminent sense - the doctor making the call is with the patient, and has the health care record to make a record of the call and the advice received. The doctor taking the call is often not in the institution, cannot make an entry in the health record, and may not be in a position to make a notation of any sort." No doubt it would be sensible for a medical practitioner to also make their own personal note of any conversation to protect themselves medico-legally, but there is no legal or policy requirement for them to do so."
5. Whatever may be said as to the accuracy of the first paragraph, there is a difficulty with the second paragraph. There is, in the Award, an obligation to comply "with relevant NSW Health and local policies, procedures and directions". One of those policies is PD2014_002 "Payment to Medical Officers Undertaking a Clinical Appraisal Remotely". Paragraph 3.2 (ii) contains the requirement to certify that the applicant has updated the record. I can accept there are arguments that the requirement is impractical and perhaps burdensome but, with due respect to Dr Sara, it cannot be said there is no policy requirement. The succeeding paragraphs to those extracted at [56], particularly paragraphs 12 and 13 of his statement, make clear that Dr Sara is arguing that the requirement is unfair. On the other hand, on one view, paragraph 11 may provide some support for the requirement. In that paragraph Dr Sara said: 11. Trust and accountability play a most important role in the medical profession. Doctors are held to a significantly higher standard of accountability than lay staff in health or in the community. If entries are found to be incorrect, the clinician making the entry could easily be subject to professional or disciplinary action.
6. If an entry is incorrect it should be identified and corrected as soon as possible. The requirement imposed on the on call practitioner to update the record at the earliest opportunity permits identification of any error and, hopefully, its rectification or mitigation.

Admissions

1. Dr Moonen was cross-examined on this issue. Her explanation illustrates why the question of who has authority to admit is of limited assistance. She said [38] : "Q. What I want to put to you is that, a situation where a decision is made by the emergency department that is to be disputed would always require the person disputing that decision to see the patient in person? A. No. That situation, it would depend on the acuity of the patient. So just to explain in more detail because this is complex things, you know, obviously. So if I were to have a call from the emergency department, and they wanted to admit a patient, and I disagreed, but I thought that the situation could wait until resolution in the morning, or that it wasn't high acuity enough to warrant me coming in for it, I would just make have the same discussion over the phone, make a management plan for that patient. Even if [I] disagreed with the admission, I then have to take responsibility of making a diagnosis and making a management plan, as I would in another case, even if it's been forced, okay. Q. If you disagreed with the decision? A. Yeah. Q. But do you still say that you would do all of those things over the phone and not go into the hospital? A. Yes, absolutely. In the case that I feel the patient is stable and there is no extra information that I need to get. However, if there were circumstances where I believed either that it was the patient was unstable for some reason, that the patient was, you know, not worked up or diagnosed properly, then there would that was like a safety, a patient's safety issue in emergency forcing that patient to the ward, then in that case I might go into the hospital, review the patient, and say no, this is my decision, and then I can discharge them from the emergency department, or I can, you know, make the appropriate referrals to other teams. It is just again the plain matter of how much information do I need to make a safe clinical judgment for that patient's management." (Emphasis added)
2. In summary Dr Moonen considers that, if a patient is admitted to the cardiology ward the medico-legal responsibility for that patient transfers to the cardiology doctor involved. Thus she needs to satisfy herself as to the state of the patient and the type and level of care to be given to that patient. Those considerations require a clinical appraisal, whether remotely or by physically examining the patient. As can be seen, her view is generally supported by Drs Mylabathula [39] and Joseph [40] .
3. The Secretary and the witnesses called in her case, contended that the ED had the right and power to admit patients under established policies. For example Dr Waterhouse said [41] : "Under RPA policy, Emergency Department (ED) consultants and registrars decide whether or not a patient is to be admitted and under which team, so most calls from the ED do not require Dr Moonen "to clinically appraise the patient and decide whether the patient should be admitted into the care of the cardiology team" as she claims (para 21). Calls from ED are usually to advise Dr Moonen that a patient is being admitted under Cardiology."
4. Dr Oliver said [42] : "Regarding Dr Moonen's statements at paragraphs 38-39 I confirm that Bankstown hospital follows PD2009_055, with a local matrix for determining which patients should be admitted under which teams. The decisions as to admissions fall to the on­ site medical practitioners under this Policy Directive. The protocol requires that trainees be contacted and notified as to the decisions to admit patients. This is what, in my view, motivated most of the calls made to Dr Moonen from the Emergency Department medical officers."
5. Dr Rewell said [43] : "29. With respect to pars 38-40 of Dr Moonen's statement, this seems to explain Dr Moonen's frequent references to other doctors not having sufficient "expertise or authority". She quotes PD 2009_055 in support of her views. With respect, I believe Dr Moonen has misinterpreted the meaning of this PD. 30. I am aware that the history of this PD is that "traditionally'' admissions thru the ED have been considered by the ED staff to require the "permission" of the consultant in question before the patient could be admitted. In practice, in large hospitals this led to patients being retained in the ED for long periods of time whilst the ED staff made multiple phone calls requesting registrars to "accept" patients. To resolve this situation, the PD was issued. It quite specifically states that the decision to admit is that of the ED staff (cl 8(a)). The role of the clinical team is to accept the admission - Not to second guess the ED staff about the decision. Should a team not "accept" within 2 hours, the ED staff decides which team gets the patient, and advises them accordingly. Whether or not the Registrar agrees at this stage is irrelevant. The specialty team under whom the ED staff have determined to admit the patient either "agrees", or if they don't and 2 hours has passed, the ED team admits them anyway these calls do not involved clinically appraising the patient but are rather admission decisions. 31. Hence, contrary to Dr Moonen's views, the "authority'' lies with the ED staff and the "expertise" is likewise stated explicitly in the PD to lie with the ED staff in making the decision to admit."
6. The opinions of the witnesses are as ships passing in the night. The Secretary's witnesses identify the protocol and conclude no clinical appraisal is necessary because the ED doctors have already made the appraisal. There may well be a clinical discussion with the inpatient team but on most occasions that will not amount to a clinical appraisal. So stated there can be no disputing the premises underpinning their conclusion. The opinion does not however come to grips with the proposition that there is a transfer of care to the inpatient medical team. With that comes a transfer of responsibility. Each of the Secretary's witnesses accepted that proposition. Where they differ is as to whom responsibility is transferred and when a clinical appraisal following a transfer of care occurs.
7. The notifier's witnesses on the other hand accept that the ED physicians have the right to make admissions but, when they do, there is a transfer of responsibility and, with that, a requirement by the inpatient team to make their own clinical appraisal of that patient. That clinical appraisal occurs at the time of transfer of care.
8. It suffices to refer to the evidence of Dr Waterhouse to illustrate these differences between clinical discussion or advice and clinical appraisal for the purposes of the Award. "Q. Now, Dr Waterhouse, you have given some evidence in your statement about the nature of admissions calls, if I can put it that way? … As I understood it, your evidence was, these calls don't involve clinical appraisals within the meaning of the award. Because they're typically calls where the Emergency Department contacts a doctor, and says: "This is what is going to happen. We are going to admit this patient to, for example, Cardiology"? A. It, it's not binary, the way it is being portrayed sometimes as them being clinical appraisals. As I said previously, sometimes there will be a clinical discussion. It's very rarely a courtesy call, as it was portrayed in the response from one of the other witnesses. I would not say that it is always a detailed clinical discussion of the patient as outlined including what has been done for the patient. And there may well be discussion of; "Are you happy for us to withhold this medication?" Or "Do you want this particular test added on?" Things of that nature. But it doesn't meet the threshold of a clinical appraisal under the award necessarily. And more obvious than not, I mean, just taking on board the comments that were made by the cardiologist whose name, I'm sorry, I can't pronounce and Dr Joseph, they were implying that there was a suggestion of courtesy calls, then disputing that, and I agree with them. That, that's not the case. But the fact that there is a clinical discussion does not mean that all of the points in the award and the Ministry Policy are met. And that would be the vast majority of the time. There is a clinical discussion, there's lots of discussion of a patient's condition, but it's not meeting the threshold of the clinical appraisal performed remotely." [44] (Emphasis added)
9. Mr Fagir sought in his cross-examination to test the existence of the distinction between clinical discussion and clinical appraisal particularly in the context of admissions. In substance the notifier's contention was that regardless of who had authority to make an admission the doctor or team accepting the admission had to make a clinical appraisal consistent with their duty of care. Dr Waterhouse's response was to refer to the criteria specified in the award. The following extract provides an illustration. "Q. You said there might be lots of discussion of the patient's condition. It's not an appraisal, in your view. Is the fact that there is a lot of discussion of a patient's condition doesn't get you where you need in terms of qualifying? A. I think the criteria is laid down very clearly on the award. If those criteria are met, it meets the threshold. Then it is an appraisal. If those criteria are not met, then it doesn't. I mean, just because there is a clinical discussion does not make it a clinical appraisal, according to the award, as it is currently worded." [45]
10. Dr Waterhouse said on several occasions that the assessment of whether a clinical appraisal has taken place needs to be made on a case by case basis and no single factor, such as reviewing an ECG is necessarily determinative.
11. Mr Fagir's cross-examination thesis was that a decision by the ED to admit a patient (other than to the Emergency Department Short Stay Unit) involves a transfer of care to the inpatient team. That requires a clinical handover and a clinical handover requires a clinical appraisal by the accepting team. As the following extracts demonstrate, Dr Waterhouse accepted much of the rationale but not necessarily the final step. "Q. Setting aside that case, where a patient is admitted from ED to an inpatient team, what is involved is a transfer of care from the Emergency Department or, perhaps, hospital to the inpatient team? A. That's right. Q. That means that the patient is the responsibility of the consultant and his or her delegates including, for example, the registrar? A. Yes. Q. That means there is a transfer of responsibility and accountability for that patient care to the inpatient team? A. Yes. Q. That transfer is a species of a clinical handover. Isn't that right? A. What do you mean, a species of clinical handover? Q. A clinical handover can occur in a variety of cases. For example, between one shift and another. That's one example of a clinical handover? A. Yep. Q. Another example is, admission to an inpatient ward? A. Mm hmm. Q. Whatever obligations are attached to a transfer of … I'm sorry, a clinical handover, they operate in the case of admission? A. Yes. Although, the patient may end up going to the ward if they're completely stable, and transfer of care conversations might occur with the medical registrar who is on, for example." [46] and "Q. I understand. Can I suggest to you that, on admission, the requirements that are attached to a clinical handover must be observed, but there is actually more? Do you accept that these requirements are necessary, but not sufficient at the point of admission? A. I just don't think you can answer that question yes or no. I mean, ultimately, you know, there will be admissions that involve a great deal more detail and that will be, you know, within the realm of the clinical appraisal being required by the person being called. But there will be others where, you know, there is a patient that has presented a number of times in recent months who has unstable heart failure. They are coming back in again. The registrar is noted, you know: "Mr Smith has re-presented today after being discharged last week. He needs further, further investigation. Are you happy for us to withhold his medication to have a transthoracic echocardiogram tomorrow morning?" Yes or no. And, you know: "Are you okay for transfer to the ward?" "Yes, that's fine". That wouldn't be a clinical appraisal and also wouldn't be a clinical handover to the extent they would be letting the person on site know about the patient to deal with the care over the next few hours until the team re-presents." [47] and "Q. I want to put two propositions to you. You can just answer me yes or no. The first is that an admission involves a clinical handover? A. I don't think you can answer that with a yes or no. Q. The second proposition I want to put to you is that because an admission involves a clinical handover, as a minimum, a conversation consistent with the ISBAR principles has to occur at the point of admission to an inpatient team? A. Well, as I said before, I don't think it is as simple as yes or no and therefore I mean, the ISBAR [48] criteria do not feature in the award as being what is required for a clinical appraisal. So, they are distinctly different. They are about a clinical handover which is not a clinical appraisal. And a clinical handover is not a clinical appraisal under the award either." [49]
12. Notwithstanding the submissions of the parties and the attempts to frame simple tests of what constitutes a "clinical appraisal remotely" the evidence does not permit such conclusions. It is not possible to establish default positions and then examine claims in light of those default positions. In that regard I agree with the opinion of Dr Waterhouse that the Award requires a case by case consideration of claims.
13. Like Staff J, I do not consider that this decision will resolve all of the issues arising from the operation of the Award. In my view what is required is a thorough review of the demands of on call work by JMOs and the conditions under which such work is performed. I can well understand how a JMO may perceive themselves relatively unrewarded for receiving $15.10 as compensation for dealing with 16 calls in the 15 hours between shifts at the hospital or $30.20 for dealing with more than 100 calls over a weekend as Dr Moonen exampled at [24]. The answer may not be as simple as increasing those amounts. It may involve ensuring that the needs which drive that volume of calls are met by other means.

Admissions

1. In essence the notifier accepted that the debate about the right to admit and the ultimate repository of admitting power is beside the point". Mr Fagir submitted each of the witnesses agreed that a request for an admission required Dr Moonen to give a view on management and care which required her to apply clinical judgment about the patient's condition, diagnosis, prognosis and appropriate management. It does not matter that the ED physicians have ultimate authority to admit. That authority is only exercised after the request to accept admission is made and therefore after the clinical appraisal, by Dr Moonen, is conducted.
2. Admission from the ED to a ward involves a clinical handover which requires the inpatient team to have a fulsome understanding of the patient's condition. Mr Fagir submitted that Dr Waterhouse denied it involved a clinical handover. I do not agree. I find on the basis of Dr Waterhouse's evidence, extracted at [74], that she accepted there was a clinical handover, but to the "medical person on site who will deal with the patient's care until the team re-presents.
3. Mr Dixon submitted that the calls made to the on call practitioner are made as part of a protocol which requires the ED registrar to take responsibility for the admission including the development of an interim management plan. While that will involve a clinical discussion it does not usually amount to a clinical appraisal. The respondent urged the Commission to find that the ED doctors sometimes seek the advice of the on call doctor "most of the time "they do not require a treatment plan for the patient because that has already been developed. I do not propose to make such general findings. First, because the evidence does not permit me to do so and second, because such a finding is of no utility. Each claim needs to be assessed on its merits.
4. Therefore I will deal with each of the claims in turn. Before doing so I should deal with two general propositions advanced by the parties.
5. Mr Fagir submitted that in construing the Award, if the language permits of more than one construction I should prefer the construction which avoids unnecessary or unfair results. Awards of the Commission are intended to set fair and reasonable conditions of employment. While that may be an elusive concept in the context of competing claims in this case the balance of fairness falls completely on one side. He submits these doctors are working for no pay when answering telephone calls while on call. That is to be rejected as industrially unpalatable and the Commission should strive for a construction which obviates such an unpalatable result.
6. I have no difficulty with the submission to the extent it accords with the authorities identified under the heading Award Interpretation. It seems to me that the submission urges me to go further and "to construct its own idea of a desirable policy, import it to the award maker and then characterise it as the purpose of the provision" (contrary to Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 per Bathurst CJ at [40]) or "to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award" (contrary to Kucks). That I cannot do.
7. The difficulty is that the submission is predicated on the basis that the employees are being asked to perform work for no pay. Yet the notifier accepts that not every call is a clinical appraisal remotely, as is demonstrated by Claim 7 which is not pressed and the evidence of the witnesses from both sides who accepted, although did not delimit, a distinction between providing clinical advice or having a clinical discussion and a undertaking a clinical appraisal. Thus the notifier accepts that there will be some "work", perhaps the majority of it, which will be unpaid. The award provides for a payment in respect of a "clinical appraisal remotely" which is defined in a particular way. Entitlement to such a payment depends upon the claimant demonstrating on the balance of probabilities that they have met the criteria prescribed in the Award.
8. Mr Dixon on the other hand submitted in his closing written submissions; "88. It will always be the case that senior medical administrators will take a particular view as to whether calls that fall within a very broad spectrum meet or do not meet the requisite criteria. In the absence of an error that might be equated to typical grounds of relief in administrative law (e.g. failure to take a relevant matter into account), these will always be issues of discretion as constrained by the criteria identified in the Award."
9. In oral submissions he elaborated [50] : "As for the more general application, if one were to deal with a situation in which there was compliance with the policy and those matters were properly certified on the basis that records have been updated and the like, there would still be an issue of discretion as to whether a manager, in my submission, would allow a claim based on their own experience and their own investigations. As I say, reasonable minds might differ on that. There is nothing advanced by the applicant that would solve the problem to create some form of uniformity as between local health areas in my submission. It would still come down to whether a person thought that there was compliance, and this is not a general discretion, this is a very confined discretion in the sense of satisfying the criteria. As I say, views might differ as to whether a case does involve a level of advice that meets the criteria, but there are criteria and there is a lot of guidance in the award as is. But on the question of whether there is a need to return to the hospital and on the question of whether circumstances are such that a phone call or a another form of remote communication might obviate the need to return, that's when, in my submission, there might be a difference of opinion, legitimately between people as to whether a claim is properly met or not."
10. I am unable to agree with this submission The Commission or an industrial court asked to enforce the Award will not approach the question as if it were reviewing the decision of an administrator given a discretion to determine certain matters. The officers of the respondent determining these claims are required to apply the Award. I have no doubt they have approached the task diligently and attempted to apply the Award as best they can. They are acting as employers however, and are administrative decision makers. The Commission, or a court, is required to approach the enforcement task on the evidence adduced by the parties and the authorities on the construction of Awards.

Claim 1

1. According to Dr Moonen's claim, form signed on 21 November 2017, the patient presented to Bankstown Hospital ED at about 6.30 pm on Sunday 18 June 2017 with palpitations and chest pain. The ED registrar rang to request a cardiology opinion for diagnosis and management. There was discussion about the patient's presenting history, past medical history, regular medications, clinical examination findings and results of investigations (to which, to avoid unnecessary repetition, I shall call "the usual discussions"). She gave a "preliminary diagnosis" of recurrence of rapid heart rhythm and expressed the view he could be managed as an outpatient. Dr Moonen advised that the patient could be discharged with a change of medication and advice that he should return to the ED if "specific" symptoms occurred.
2. Dr Oliver's response was that the information provided by Dr Moonen about the nature of the presenting problem and the advice given demonstrated that on-site assessment by the on-call JMO or on-call cardiologist would never have been required. I note as well that Dr Oliver indicates that Dr Moonen originally submitted claims 1 to 5 without completing the certification questions. The claims were later resubmitted. The evidence does not identify when the claims were originally submitted so the elapsed time between the event the subject of the claim and the making of the claim may be exaggerated.
3. In response to Dr Oliver, Dr Moonen said that within working hours the patient would be reviewed in person. The existence of an afterhours on-call service means the patients do not need to be reviewed in person because a telephone discussion and advice suffices.
4. The Award requirements specified in cl 12(xi)(a) 1 - 8 are not put in dispute. What is disputed is whether Dr Moonen complied with all relevant NSW Health policies, in particular whether she "updated the patient's medical record at the earliest opportunity", and whether, but for the telephone opinion Dr Moonen "would have otherwise needed to have returned to the workplace".
5. The evidence is clear as to the former. Dr Moonen did not update the patient's medical record. A further issue, not really addressed in the evidence except inferentially, is the requirement to update at the earliest opportunity. This claim is lodged some 5 months after the phone call. If Dr Moonen were to have updated the medical record in November 2017 it is doubtful that it would be the "earliest opportunity". It is unnecessary to address that issue further because the record was not updated as required. It is a matter to which the parties need to give consideration in terms of the Policy and the Award requirements.
6. The notifier submitted that it was unfair to require JMOs, who already work extended hours, some of which are without pay, to be required to update the records in their own time. I agree. I do not see why the JMOs should be required to do it in their own time. It is work required by the employer. It should be done on the employer's time.
7. The finding about the record is sufficient to reject the claim. As this is dispute about the proper meaning and application of the Award, it is nevertheless appropriate to address the issue of whether the remote discussion, to use a neutral term, obviated a need for Dr Moonen to return to the workplace.
8. The notifier submits that, the fact that the on-duty staff decide there is a need to call the on-call medical officer, demonstrates that, but for the call, a return to the workplace would have been required. The respondent submits that it is not as simple as that. There is medical staff on-duty who can in most cases manage patients, albeit perhaps with some specialist clinical advice which may be obtained by means of a telephone call or other electronic communication. The fact of a phone call and provision of some advice does not mean that the on-call medical officer would have been called back to duty.
9. This difference of view highlights the significance of the, unresolved, distinction between clinical advice or discussion and clinical appraisal. As I have indicated witnesses called by both sides acknowledged a distinction without clearly defining it. That leads to the inevitable conclusion, acknowledged, at least implicitly, by the notifier that not every telephone or email clinical discussion involves a remote clinical appraisal. That provides a background against which the Award distinction may be assessed.
10. In my view the Award distinction is to be found in asking whether the circumstances would have justified or a call-back to duty. That is, whether the on-duty medical staff have decided it is necessary to call in the on-call medical officer but the on-call medical officer is able, by use of electronic communication, to obviate the need to return to the hospital. Prior to the Award variation, whether rightly or wrongly such work would have been unrewarded. The variation is intended to provide for payment for that work or, at least, make patent that such work is to be remunerated.
11. The evidence before me does not suggest that, in respect of any of these claims, the on-duty staff had formed a view that it was necessary to call Dr Moonen back to the workplace. Nor does it suggest that Dr Moonen thought the cases were of a nature which would have required her to physically examine the patient in order to form a clinical view. I accept that she advanced, in her standard wording, that she obtained sufficient information to enable her to provide the clinical advice necessary without returning to the hospital, but the significance of that statement is reduced by its generality and the fact that it was advanced in respect of all claims including those not pressed by her. I accept too that within hours she would review the patients in person. That does not however lead to the conclusion that an off-duty medical officer would be recalled to duty in such circumstances.
12. I accept it follows that many clinical discussions with on-call medical officers are without specific payment. That is something that would need to be considered and addressed by variation of the Award or other change in practice to ensure the on-call medical officers do not receive such calls.

Claim 2

1. Dr Moonen's form signed on 21 November 2017, indicates a new patient presented to the ED on 18 June 2017, with breathlessness and fatigue. She had the usual discussions with an ED registrar and formed a preliminary diagnosis of possible new heart rhythm abnormality with differential diagnoses of reduced cardiac blood flow or fluid overload. She advised a plan for further monitoring in the cardiac ward, investigations and management. The patient was admitted and reviewed by the ward team the next day.
2. Dr Oliver's evidence was that the case was insufficiently complicated to have required a recall to duty. He acknowledged that she provided some advice but maintained that does not amount to a remote clinical appraisal. For the reasons outlined above the evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Claim 3

1. The claim form, signed on 21 November 2017, indicates that Dr Moonen received a call from an ED registrar about a new patient who had presented with chest pain. Again she had the usual discussions, formed a preliminary diagnosis of reduced cardiac blood flow with a differential diagnosis of thickening of the heart muscle. She advised monitoring in the cardiac ward and further investigations. The patient was admitted and reviewed by the ward team the next day.
2. Dr Oliver's evidence was the same as for claim 2. Again, the evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Claim 4

1. The claim form, signed 21 November 2017, indicates that a patient admitted under the gastrointestinal surgery team had developed a fast abnormal heart rhythm. The registrar covering the wards requested a cardiology opinion. She had the usual discussions which revealed the patient was 4 days post-operative. Dr Moonen formed a preliminary diagnosis of new rapid abnormal heart rhythm or atrial fibrillation likely secondary to infection. She advised monitoring in the cardiac ward and further investigations. The patient was transferred to the cardiac ward and reviewed by the ward team the following day.
2. Dr Oliver's evidence confirms Dr Moonen's statements and adds that the patient's hospital records indicate Dr Moonen's approval was required to transfer the patient to a monitored bed. He said that the case would not have required Dr Moonen to return to the hospital.
3. The evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Claim 5

1. The claim form, signed 21 November 2017, indicates that a new patient had presented to the ED on 18 June 2017 with breathlessness, coughs and fevers. The ED resident medical officer called Dr Moonen to request a cardiology opinion. There followed the usual discussions. Dr Moonen formed a preliminary diagnosis of fluid overload precipitated by a lung infection and anaemia. She advised observation in the cardiac ward and investigations and management. The patient was admitted and reviwed by the cardiac ward team the following day.
2. Dr Oliver's evidence was that the hospital records confirm the on-call trainee provided some advice. Although Dr Moonen was not named in the records Dr Oliver did not suggest that she was not the trainee who provided the advice. Dr Oliver said that the case was neither complex nor time critical enough to have warranted Dr Moonen to be recalled to the hospital.
3. The evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Claim 6

1. The claim form, signed 5 March 2018, indicates that a medical registrar from the geriatrics ward rang Dr Moonen on 3 September 2017 to request an opinion about a patient admitted to that ward with an infection. Following the usual discussion Dr Moonen gave a preliminary diagnosis of acute pulmonary oedema. She also advised a plan for medications, monitoring and further investigations.
2. Dr Oliver said that the hospital records confirm that the patient was not so complex as to require a call back.
3. The evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Claim 7

1. This claim was not pressed by either the notifier or Dr Moonen.

Claim 8 The claim form dated 5 March 2018 indicates that Dr Moonen received a call from an anaesthetics registrar on 2 March 2018 seeking an opinion about a patient he had just anaesthetized for a procedure who had developed an abnormal heart rhythm. The medical practitioners had the usual discussions and Dr Moonen was sent pictures of the patient ECGs for review. Dr Moonen advised the patient's heart rhythm was atrial fibrillation ("AF") rather than ventricular tachycardia ("VT"). She also advised as to the treatment required and further monitoring.

1. Dr Waterhouse said the hospital records confirmed Dr Moonen's account and she would have approved the claim had the patient's records been updated by Dr Moonen. Dr Waterhouse was of the opinion that, had Dr Moonen not been able to review the ECG images remotely and provide advice she may have had to return to the hospital to assess the patient.
2. In light of Dr Waterhouse's evidence I would grant this claim but for the failure of Dr Moonen to update the patient's medical record.

Claim 9

1. The claim form, dated 5 March 2018, indicates that Dr Moonen received a call on 5 March 2018 from an ED registrar seeking advice on diagnosis and management of a patient admitted under the renal team with a urinary tract infection. The practitioners engaged in the usual discussions and Dr Moonen's preliminary diagnosis was abnormal heart rhythm or AF. She advised a plan for medications, monitoring and further investigations.
2. Dr Waterhouse said the hospital records indicate the call was made on 2 March not 5 March. Further, the diagnosis of AF had been made by the ED registrar prior to the call. The ED registrar initially called the renal registrar to arrange admission for urosepsis and the renal registrar asked him to arrange a monitored bed due to the AF. The RPA protocol does not permit allocation of a monitored bed after hours without the approval of the on-call Cardiology registrar. The ED registrar rang Dr Moonen for approval of a monitored bed. She gave the approval and advice about medication dosage. The ED registrar later rang Dr Moonen back to advise that the patient had resumed normal rhythm and the monitored bed was no longer required.
3. Dr Waterhouse also contended that the patient's condition would not have required a return to the hospital by Dr Moonen because, as the Head of Cardiology at the hospital advised, AF is common abnormal heart rhythm usually managed by on-site registrars.
4. The evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Claim 10

1. The claim form, dated 5 March 2018, indicates that Dr Moonen received a call on 24 February 2018 from the Colorectal Surgery JMO seeking a cardiology opinion for diagnosis and management. The medical officers had the usual discussions following which Dr Moonen gave a preliminary diagnosis of AF probably secondary to infection following bowel surgery. She advised a plan for further monitoring, investigations and management. The patient was managed in accordance with her advice.
2. Dr Waterhouse said the medical records indicate that an on-duty Basic Physician Trainee ("BPT") attended the patient following a call advising that the patient had developed AF. He did a comprehensive assessment and instigated a detailed management plan. Further, they indicate he asked a junior doctor to arrange certain investigations including a Trans-Thoracic Echo ("TTE"). The junior doctor called Dr Moonen to arrange the TTE. When the BPT became aware of the call he clarified that the TTE was not urgent and could be done the following week. According to Dr Waterhouse the BPT's medical records contradict the claims made by Dr Moonen including that the patient was managed in accordance with her advice.
3. I have earlier noted that the medical records were not put into evidence. At the beginning of the cross-examination of Dr Waterhouse she advised that she had the medical records referred to in her statement. Following the cross-examination Mr Dixon sought to tender them but Mr Fagir objected on the basis that the tender was too late. I noted that, absent the records, I was left with Dr Waterhouse's summary of them and what she had read onto the transcript during cross-examination. In the circumstances I did not permit the tender.
4. The Commission is not bound by the rules of evidence and can inform itself on any matter in any way it considers to be just [51] . The statements of Drs Waterhouse and Oliver were filed well in advance of the hearing. In those statements the referred extensively to the medical and hospital records. In those circumstances I have decided to accept the references to the Medical records as evidence of their content.
5. Having said that, I do not conclude that the records contain a statement by the BPT to the effect that Dr Moonen's account is not true. He would not be aware of Dr Moonen's account when he made his entries. Rather, I conclude that what the BPT has written in the records contradicts what Dr Moonen has represented in her claim in that he has recorded that he made the diagnosis and developed and implemented the management plan. What emerges is evidence that the on-duty medical staff were not seeking for Dr Moonen to return to the hospital to assess this patient.
6. The evidence does not allow me to conclude that the discussion obviated a recall to the workplace. Indeed the evidence in this case points strongly to the conclusion that there was never a need for Dr Moonen to return in respect of this patient.

Claim 11

1. The claim form, dated 5 March 2018, indicates that Dr Moonen received a call at 6pm on 25 February 2018 from a Medical Retrieval Physician ("MRP") seeking a cardiology opinion for diagnosis and management. The call lasted until 6.30 pm. Following the usual discussions Dr Moonen developed a preliminary diagnosis of a life-threatening slow heart rhythm requiring immediate management. She advised a plan for transfer from Coffs Harbour Hospital to RPA and also advised on appropriate monitoring and management. The patient was managed in accordance with her advice and transferred to RPA by air ambulance.
2. Dr Waterhouse said that Medical Retrieval Physicians are senior to Dr Moonen and very experienced in the management of critically unwell patients. It was unlikely the MRP was seeking her advice on management of the patient. The call was most likely to be an enquiry about bed availability at RPA.
3. More objectively the call did not obviate a return to the hospital because the patient was in Coffs Harbour not at RPA. Returning to the hospital would have served no purpose.
4. The patient was transferred to RPA and Dr Moonen claimed and was paid for a call back commencing at the same time as the claimed remote clinical appraisal finished. Dr Waterhouse regarded the two claims as inconsistent.
5. Dr Moonen responded that Dr Waterhouse's statements about MRPs appeared speculative but she confirmed the call was about bed availability. She added it was not for that purpose alone. She argued that the remote clinical appraisal and the call back are two distinct clinical services. She responded to the timing issue by indicating she received the first call at about 2.30pm.The last call at 6.30 pm was from the cardiology department to advise that the patient had arrived. In the interim she spent approximately 45 minutes making numerous calls to other hospitals and clinicians.
6. In her cross-examination Dr Moonen accepted that this case did not meet the criteria for a remote clinical appraisal. She said [52] : "Q. Do you say this is one of the claims that you press as a remote clinical appraisal or not? A. This is a claim that would not satisfy that, that did not need to return to the hospital. But this was an out of hours call that was extremely complex, extremely involved, and involved me speaking to about five different people all over up you know, all up the east coast of New South Wales to try and work out the best management disposition for this patient. So yes, I would say that this is not a remote clinical appraisal but this is a highly involved and complex call that required a lot of input in an after hours context that wasn't paid."
7. Notwithstanding Dr Moonen's view the notifier pressed the claim. I agree with Dr Moonen that it is an interesting example of a JMO being required to perform a lot of work without pay. Although, she was of course paid for the call back and the proximity of the asserted remote clinical appraisal and the call back are such that some compensation for the former may well be involved in the latter. When the call back commenced is a matter of judgment. Dr Moonen's evidence suggests she was aware she would be required to return to the hospital when the patient arrived and that was established well before 6.30pm.
8. It follows that I am unable to conclude that this is a remote clinical appraisal within the meaning of the Award. It does not follow that I reject the notifier's contention that a remote clinical appraisal and a call back about the same patient are mutually exclusive propositions. I could well imagine a case involving a remote clinical appraisal and later a call back because of a significant change in the patient's condition.

Claim 12

1. The claim form, dated 5 March 2018, indicates that Dr Moonen received a call at 6pm on 25 February 2018 from a medical registrar about a patient awaiting coronary by-pass surgery. Following the usual discussions Dr Moonen gave a preliminary diagnosis of AF. She advised on monitoring and management. The patient was managed in accordance with her advice and remained stable.
2. Dr Waterhouse said the records indicate the medical registrar was a BPT. She did a comprehensive assessment and developed a management plan. She called Dr Moonen about one aspect of that plan being the anticoagulation medication. Dr Moonen recommended Clexane. The BPT then explained the risks and benefits of the medication to the patient.
3. The evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Claim 13

1. The claim form, dated 5 March 2018, indicates that Dr Moonen received a call at 6pm on 24 February 2018 from a Cardiothoracic Surgery JMO seeking a cardiology opinion for diagnosis and management. Following the usual discussions Dr Mooned gave a preliminary diagnosis of AF. She advised a management plan including transfer to the coronary care unit for intravenous medication, monitoring and ongoing management. The patient was managed as per her advice.
2. Dr Waterhouse said that the medical record and the information provided by Dr Moonen did not allow her to conclude that the patient was managed in accordance with her advice because the patient was given a single oral dose of medication which caused the return to normal rhythm. It was not clear whether that was on Dr Moonen's advice or a decision of the on-duty team. Nevertheless Dr Waterhouse regarded this claim as one which may possibly have been approved had Dr Moonen updated the patient's medical record. That was because she developed more of a treatment plan for the patient than in some of her other claims.
3. Dr Waterhouse also noted that Dr Moonen came in to review the patient and claimed a call back for that purpose. That cast doubt on whether the remote advice obviated a return to the hospital.
4. The evidence does not allow me to conclude that the discussion obviated a recall to the workplace.

Conclusion

1. For the reasons given the small claim associated with the dispute must be dismissed.
2. The case illustrates that JMO's are being asked to do significant amounts of work when on call for which they are not paid. The Award, perhaps for historical reasons, appears to overlook this work at least in terms of remuneration. I recommend that the notifier and the respondent engage in detailed discussions about how this situation may be addressed. Claim 11 also provides an illustration of the possibility of an on-call medical officer being required to provide a remote clinical appraisal in every respect save for the fact that the patient is not located at their hospital. They would for that reason alone be denied compensation. The situation is one which warrants early attention

Endnotes

1. Australian Salaried Medical Officers' Federation (NSW) v Secretary of Health [2018] NSWIRComm 1024
2. At the time of hearing the allowances prescribed were $15.10, $30.20 and $105.70 respectively.
3. Although it has no particular significance in this case, I infer from the fact that JMOs are medical practitioners at the beginning of their professional life and the assumption they are keen to add to their knowledge and experience, that they may on occasions remain at the hospital for that reason.
4. Health Services Union NSW v Director General NSW Ministry of Health [2013] NSWIRComm 2 at [3]
5. For more abundant caution I have checked the Commission's files of the appeal and award variation. I have confirmed that ASMOF intervened in the Appeal, adopting and supporting the HSU's submissions, and it appeared on the application for variation. The variation was made by Staff J in IRC 940 of 2013 on 20 December 2013. The transcript of the proceedings contains his Honour's reasons and order. The transcript confirms the appearance of ASMOF. The reasons confirm that ASMOF consented to the variation.
6. Exhibit 1 at para 12
7. Ibid. at paras 14,16 and 17
8. Tcpt 4 July 2018 p 15(14 - 34)
9. Tcpt 4 July 2018 p 33 (38 - 44)
10. Tcpt 4 July 2018 p 42(1-12)
11. Tcpt 4 July 2018 p 36 (6 - 11) and see the discussion and further evidence of Dr Moonen at [37] and [38]
12. Tcpt 4 July 2018 p 56 (16 - 25)
13. Tcpt 9 July 2018 p 19 (11 - 12)
14. Exhibit 13
15. Exhibit 1 annexure AM-01 p 7 of 7
16. Tcpt 4 July 2018 p 48(5 - 11)
17. Tcpt 4 July 2018 p 42 (43) - p 44(33)
18. Tcpt 4 July 2018 p 47 (33) - p 48(3)
19. Tcpt 4 July 2018 p 80 (5 - 18)
20. Annexure TW-1 to Exhibit 7
21. Tcpt 4 July 2018 p 77(17-18)
22. Australian Salaried Medical Officers' Federation (NSW) v Secretary of Health at [153] -[156]
23. Exhibit 12 Annexure BO-5 at page 1 of 1
24. Exhibit 12 Annexure BO-5 at page 7 of 7
25. Health Services Union NSW v Director General, New South Wales Ministry of Health [2013} NSWIRComm 21 at [104]
26. Ibid at [162] - [163]
27. Exhibit 4 paras 7-9
28. Ibid paras 11 and 13
29. Ibid paras 15 and 16
30. Tcpt 4 July 2018 p 84(45) - p 85(8)
31. Tcpt 4 July 2018 p 85(16 - 40)
32. Exhibit 5 at paras 7 and 8
33. Ibid at para 10
34. Exhibit 6 at para 3
35. Ibid at para 7
36. Exhibit 12 Annexure BO-5 at p 7 of 7
37. Exhibit 6 at paras 8 and 9
38. Tcpt 4 July 2018 p 31(15 - 43)
39. At [44]
40. At [51]
41. Exhibit 7 at para 61
42. Exhibit 12 at para 21
43. Exhibit 11 at paras 29-31
44. Tcpt 9 July 2018 p 30(25-49)
45. Tcpt 9 July 2018 p 30(25) - 31(8)
46. Tcpt 9 July 2018 p 35(8-35)
47. Tcpt 9 July 2018 p 39(22-39)
48. ISBAR was an acrostic which appears according to Dr Waterhouse in a number of different places (Tcpt 9 July 2018 at p78 (29)). It refers to: Introduction, Situation, Background, Assessment, and Recommendation.
49. Tcpt 9 July 2018 p 39(20-31)
50. Tcpt 22 August 2018 p 41(24-41)
51. Industrial Relations Act s163(1)
52. Tcpt 4 July 2018 p66(28-36) 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: 12 August 2020