Dr A v Health District

Respondent's contention regarding Allegation Two 182There were, as I have already explained, two allegations made against the applicant that involved the use of the pillow. Allegation One was based on information provided by other clinicians present. That information suggested that Dr A woke the Patient, the Patient became angry and aggressive, the Patient was held down, the drug Haloperidol was administered, the Patient spat in Dr A's face and Dr A then allegedly applied the pillow forcefully to the Patient's face. Allegation One was sustained. 183Allegation Two was based on information that after Dr A returned from washing his face, he saw that, in the meantime, a Hudson mask had been applied to the Patient's face. Nevertheless, the allegation was that Dr A again applied the pillow to the Patient's face, but this time over the Hudson mask. Whilst this was occurring the limb restraints were applied to the Patient. This allegation was not sustained because the Chief Executive considered the evidence was insufficient. The Chief Executive's opinion in this regard seems to have been guided by the Investigators' view that: The possibility that the second alleged incident occurred when Dr B and RN2 were not present cannot be discounted, particularly as Dr C is considered to be a credible witness who has no known reason to prevaricate her evidence. Although the investigators prefer the evidence of Dr C they are of the view that given the lack of corroborative evidence, and in contemplation of the Briginshaw Principle, the allegation should not be sustained due to insufficient evidence. 184Dr A's evidence was that he only used the pillow once as a spit shield, but in doing so did not apply it to the Patient's face. Dr A said that he used the pillow as a spit shield after returning from washing his face. He said he saw the Hudson mask, but that it was not an effective barrier because it was too small, still folded and, therefore, not applied properly such that it would prevent the Patient spitting on him and other staff present. Dr A stated: Due to the risk to my safety and that of the other staff, in the spur of the moment, I picked up a pillow that was next to Patient 1 and held it up approximately 10cm from Patient 1's face as a shield to block the spit stream which continued. The total time that I held the pillow as a shield was no more than 5 - 10 seconds. It was a last resort improvisation designed to be in the best interests of the patient and staff in a difficult situation. 185The respondent now contends that Dr A applied the pillow in the circumstances supporting Allegation One (completely denied by Dr A) and that, despite the finding that Allegation Two was not sustained and, therefore, did not constitute a basis for deciding to dismiss Dr A, the Commission should find the Allegation is made out. 186There are two aspects to Allegation Two. Firstly, whether after the Hudson mask had been applied by RN2 and after the applicant returned from washing his face, the applicant picked up the pillow and used it in some way in relation to the Patient; and secondly, if so, whether the pillow was forcefully applied to the Patient's face. 187As to the first aspect, there appears to be unanimity amongst all five clinicians present that after he returned from washing his face and after the Hudson mask had been applied by RN2, Dr A picked up the pillow and used it in some way in relation to the Patient. Dr A said he used the pillow as a spit shield whilst holding it away from the Patient's face. Other evidence was that Dr A forcefully applied the pillow to the Patient's face over the Hudson mask. 188My conclusion is that, in relation to the first aspect of Allegation Two, after the Hudson mask had been applied and the applicant returned from washing his face, the applicant picked up the pillow and used it in some way in relation to the Patient. As to the second aspect of Allegation Two - that the pillow was applied forcefully to the Patient's face over the Hudson mask - that cannot be sustained to the level of proof required by the Briginshaw standard. My reasons for arriving at that conclusion are as follows: (1)The only evidence that the pillow was applied forcefully to the Patient's face over the Hudson mask was that of Dr C. Dr B said that whilst she saw the pillow used a second time it was not pressed into the Patient's face, that it was "used as a shield and did not touch the patient's face." Dr B also stated, "On the second occasion, the pillow was used as a shield but at that time I didn't specifically see who it was used by." RN1 noted that the pillow was "near the patient's face again" and "the pillow seemed to be just lying over the patient's face." RN2 said when she returned from obtaining the restraints, "Dr [A] had replaced the pillow over the patient's face though at a distance" and that "When I returned, I saw Dr [A] holding the pillow directly above the patient's head. The patient was moving around trying to look from under the pillow." (2)Whilst I regarded Dr C as an honest, credible witness, I note that she was very upset, shocked and distressed at what she said was a "quite a horrible and disturbing thing to see" when she alleged Dr A forcefully applied the pillow on the first occasion. Dr C remained in a distressed state for some hours after the incident. Further, in her own words she was "not really dealing with the situation very well". I cannot be satisfied, in the absence of corroborative evidence, that in her shocked and distressed state Dr C could be relied upon to give an accurate account of what occurred, especially given the seriousness of Allegation Two and the implications for Dr A if the Allegation was made out. (3)If the Hudson mask had been properly applied to the face of the Patient, as Dr C and others claimed, it is difficult to imagine why Dr A would find it necessary to forcefully apply the pillow over the Patient's face to prevent the Patient from spitting. The Hudson mask would have achieved that objective. If, however, the Hudson mask was not properly applied, perhaps because it became dislodged by the violent movements of the Patient, the pillow may have been used as a spit shield held away from the Patient's face. That would be consistent with Dr A's evidence. (4)One reason Dr A may have applied the pillow forcefully is out of anger at having been spat on. However, there was no evidence from the other clinicians present that Dr A applied the pillow out of anger. 189The respondent submitted that the most important feature about Dr A's use of the pillow on the second occasion was not whether it was applied with force, but the fact that it was used at all. It was submitted that by this time, Dr A had the opportunity, whilst washing his face and undertaking his thoughtful consideration, to make a considered response about how to cope with further possible incidents of spitting. The use of the pillow on this second occasion as a spit shield was highly inappropriate on any version of events. 190I agree to some extent. I agree with the respondent that Dr A made a series of poor decisions about his treatment of the Patient that led to a situation where he said he had to resort to using a pillow as a spit shield. There was a lack of communication, an absence of appropriate planning and no risk assessment. 191Dr A knew that the patient was suffering from delirium. He knew that the Patient had been aggressive upon being woken up. On any objective analysis it was a poor decision to administer the Haloperidol and attempt the scan in the EMU with a patient that was combative and had punched Dr C and attempted to punch others. Alternatively, as the respondent submitted, given that a violent reaction from the Patient was plainly foreseeable, Dr A failed to make any real risk assessment as to the PPE that might be needed, nor as to the directions and consultation that were required with the other clinicians on how to manage the Patient. 192This led to a situation where, having woken the Patient, Dr A was confronted with a situation that five clinicians were unable, in the short term, to adequately deal with: a patient who was "violently thrashing around" and spitting. The Patient had to be physically restrained by the clinicians. Not having made any risk assessment or consulted with the other clinicians to a proper degree, Dr A was placed in a position of not having any adequate PPE or restraints immediately available and had to resort to using the pillow as the only device at hand to use as a spit shield. It was not as if spitting was not foreseeable. Spitting occurs fairly regularly in EDs according to NM1's evidence. 193However, this episode of poor decision-making, in circumstances where there was no harm to the Patient, does not justify a decision to dismiss. The respondent itself must have recognised this because it had all the evidence it needed to show that a pillow was used as a spit shield. Indeed, Dr A agreed that was so, but the respondent did not rely on the use of the pillow as a spit shield to justify a decision to dismiss. 194 There is no basis to draw any adverse inference in relation to Dr A's credit in respect of Allegation Two.

Timing of Haloperidol injection 195The respondent submitted that whilst Dr A was at pains to describe each and every other step during the course of his "treatment" of the Patient on 25 May 2013 in his affidavits, at no stage did Dr A refer to the moment when RN2 injected the Patient with Haloperidol. In cross-examination, Dr A said he had omitted it on legal advice. What that legal advice may have been was not explored, perhaps for understandable reasons, but the fact that Dr A did not refer to the timing of the Haloperidol injection makes one wonder why not. 196The respondent submitted that in giving oral evidence Dr A, for the first time, asserted that the injection of Haloperidol occurred after he had returned from washing his face and after the Hudson mask had been applied. 197It is correct that the first time in his evidence Dr A addressed the question of the timing of the Haloperidol injection was in his oral evidence. He did assert that the injection occurred after he had returned from washing his face and after the Hudson mask had been applied. Dr A's evidence was that after two to three seconds of thoughtful consideration at the end of the bed after his return from washing his face: (1)he asked RN2 to get 5 mg Haloperidol; (2)RN2 left to get the Haloperidol and was gone for about 10-20 seconds; (3)during that time the Patient continued to emit a steady stream of spit; (4)when RN2 returned, the Patient was turned on to his side, RN2 moved to the right side of the Patient and injected him whilst he was being held by the others and then the Patient was rolled back. The flailing and shouting and spitting continued and Dr A had the idea that if he could just get two seconds of probe to skin contact time, he could work out the most appropriate disposition for the Patient. But it became clear that was not going to happen in EMU, and the spit continued. Dr A held up the pillow "as a quick transient measure", handed it to Dr C, and the restraints were obtained. 198Subsequently in his cross-examination, Dr A's evidence was relevantly that: (1)as part of his thoughtful observation of two to three seconds whilst approaching the Patient's bed, Dr A determined that the Hudson mask was not going to be effective and that a non breather mask from RESUS would also not be appropriate; (2)following his observation, he walked up behind Dr B and took his position; (3)whilst the Haloperidol was being obtained by RN2 (which took 20-30 seconds), the Hudson mask was left on the Patient's face. Although an attempt was made to hold the Patient down the Patient was thrashing about whilst Dr A was observing him; (4)when RN2 returned, she gave the Patient the Haloperidol; (5)the Patient continued to violently thrash around the bed; (6)the decision was made by Dr A to use the pillow as a spit shield. 199The respondent submitted that Dr A's version of when the Haloperidol was injected was at odds with other evidence, which was that the Haloperidol was injected prior to the Patient spitting at Dr A and prior to the placement of the Hudson mask. The other evidence referred to by the respondent was as follows: (1)clinical notes by nurses regarding history of Patient's treatment; (2)clinical notes of Dr A; (3)clinical notes of Dr C; (4)AIMS Incident Detail Report of Dr C; (5)AIMS Incident Detail Report of RN2; (6)Interview record of RN1; (7)Interview record of RN2; (8)Statement of Dr B provided to investigator; (9)Interview record of Dr C; (10)affidavit of RN1; (11)affidavit of RN2; (12)affidavit of Dr B; (13)affidavit of Dr C. 200It was further submitted for the respondent that Dr A's oral evidence, that the injection was administered after the Hudson mask was applied, was inconsistent with: (1)the response he provided in his internal interview on 6 June 2013; (2)the correspondence from his solicitors dated 3 July 2013; (3)Dr A's evidence that the search for the drug chart occurred when he arrived at the Patient's bed; (4)Dr A's evidence that prior to administration of the Haloperidol, the Patient was sleeping; (5)Dr A's evidence that he requested Dr C to write up 5mg of intramuscular Haloperidol; and (6)that Dr A made this request at the time he was busy getting the ultrasound machine ready. 201The respondent referred to the fact that in his interview on 6 June 2013, Dr A agreed with the investigator that he had awoken the Patient, the Patient had hit Dr A and become violent and the interview continued as follows: Q. And then you described Dr [C] was at the patient's right arm and Dr [B] was at the patient's left foot and a nurse at the right foot and then by inference, there is another nurse there. A. The nurse was actually administering the haloperidol. She was sort of free to move as it were because Dr [B] was holding the leg. 202The respondent's submission regarding the alleged inconsistencies in Dr A's evidence in relation to the timing of the Haloperidol injection was that the Commission ought find that either Dr A lied to the internal investigator or fabricated his evidence in these proceedings on this issue. Taken on its own or in combination with the other examples of fabricated and inconsistent evidence, it was submitted the Commission ought rely on this matter in making a finding that Dr A has been dishonest. 203There is a clear inconsistency between the evidence of Dr A and the other clinicians who were present regarding the timing of the Haloperidol injection. There is also an inconsistency between what Dr A told the investigator and his evidence in these proceedings. 204The respondent, however, did not put to the applicant in cross-examination that he was being dishonest or misleading. Moreover, the respondent did not suggest a motive for Dr A putting a different version as to the timing of the Haloperidol injection to that of the other clinicians. In other words, what advantage would Dr A gain from putting a different version such that he resorted to being untruthful? There may have been one, but the respondent did not say what it was. Accordingly, the fact that Dr A's evidence about the timing of the injection was inconsistent with that of other clinicians and with what he told the investigator is not a sufficient basis on which to find the applicant was untruthful. 205The weight of the evidence supports a conclusion that the Haloperidol was administered at a time consistent with the evidence of the other clinicians. RN2's evidence was as follows: Some time later, at approximately 23:00 hours, Dr [A] came in to the EMU. He said: "Can you get the IMI Haloperidol for [the Patient]?" It is standard practice when the patient is to be administered IMI Haloperidol medication for the patient to be physically restrained. This practice is necessary to ensure staff safety from sharps when dealing with an acutely confused patient. Another nurse, [RN1] came to assist with the restraining of the patient. I don't know who had asked the other staff but in addition to [RN1] and me, there was Dr [B], Dr [C] and Dr [A]. Dr [C] was on the patient's right, restraining his right arm. Dr [A] was restraining the patient's left arm. [RN1] and Dr [B] were restraining the patient's legs. Dr [A] told me to administer the Haloperidol. The patient was lying on his left side and whilst he was restrained in that position, I administered the IMI injection into the patient's right buttock. I then moved to the end of the bed. The patient was then moved so that he was lying on his back. He was becoming more confused and agitated. Before waiting for the sedative to take effect, Dr [A] commenced the bladder scan straight away. As he did so, the patient, turned his head around and spat directly into Dr [A's] face.... 206Dr C's evidence was that following her discussion with Dr A regarding the appropriate medication Dr A instructed her to chart the Haloperidol, which she did. Dr C then deposed: At this point the patient was still asleep and peaceful. The nurses went to draw up the haloperidol. When they arrived back at the patient's bedside Dr [A], was waking up the patient to administer the medication rather than administering the medication with the patient settled. I remember he then said something to the patient, but I do not recall what he said, but I remember the patient started throwing punches and becoming physically aggressive. Dr [A] did not call any security to assist in holding down the patient, instead he got me, the resident and the two nurses to assist holding the patient down. Then one of the nurses, I do not remember which one, gave the drug to the patient which was given with a needle. The patient seemed very angry at being given the needle and began throwing punches and then spat in Dr [A's] face. Dr [A] was visibly angry at this. Dr [A's] whole face changed, I could tell from his expression that he was angry at what had just occurred. Dr [A] then reached behind the patient's head and grabbed the patient's pillow and held it down hard on the patient's face. I was completely shocked. At that point I was at a complete loss at what to do. 207Dr B's affidavit had attached to it the Statement she provided to the internal investigation. In the Statement Dr B said: I later returned to check with the nurses on [Patient's] progress/concerns and to see if [Dr C] had been to see [the Patient]. At this point [Dr C] and Dr [A] were in the EMU. Dr [A] stated that the patient was to be sedated as he was going to scan his bladder with bedside ultrasound ? retention and ... He asked me to stay to help and I agreed. It had been decided prior to my arrival to give [the Patient] Haloperidol IM. RN2 went to prepare the drug while we positioned ourselves. ... RN2 passed the haloperidol to the other nurse for administration. I positioned the patient's knees moving them towards me to allow the injection to be administered to [the Patient's right buttock. Following this the patient became both verbally and physically aggressive and was attempting to hit staff. Dr [A] asked me to hold the patient's left arm as he prepared the ultrasound. He turned his back to the patient turning on the USS and as he turned back towards the patient the patient spat directly into Dr [A's] face. Dr [A] took the pillow from behind the patient's head as [the Patient] was leaning forward trying to get up. Dr [A] using his left hand pushed the patient into the bed with the pillow covering the patient's face. He held the pillow on his face for approximately 5-10 sec and stated during this time that it wouldn't impair his ventilation. 208RN1 deposed as follows: I was in the Emergency Medical Unit (EMU) with another patient. After I had left that patient, I offered to assist with the restraint of a patient in order to give him an injection of haloperidol. This took place in Bed 8 in the EMU. There was male doctor on the patient's left hand side, near the patient's head (I now know that this was Dr [A]). There was a female doctor on the patient's right hand side, holding his arm (I now know that was Dr [C]] and another female doctor between me and Dr [C]. I held the patient's right leg. I didn't know the doctors or their names then. However, [RN2], a nurse that I know in the EMU, was there and she administered an injection of haloperidol whilst we were holding the patient. ... Dr [A] says that the patient spat a large amount of saliva into his mouth eyes and right ear. I did not see that. However, I remember looking up and seeing a pillow horizontal across the patient's face. Dr [A] was holding the pillow over the patient's face. He had a grasping hold across the pillow horizontally. 209 Dr C, Dr B and RN2 said that after they saw the pillow applied the first time, each of them saw Dr A apply the pillow a second time after he had washed his face and after RN2 had applied the Hudson mask. RN1 said: Dr [A] then left the area. ... I remember that I saw that [RN2] put an oxygen mask on the patient. [Dr A] says that the oxygen mask was too small and still folded when it was placed on the patient. That is not my recollection. When I saw the mask, it looked as if it had been put in position by [RN2]. At that point, I remember seeing the pillow sitting half across the patient's face. It wasn't like it was before when Dr A was holding the pillow across the patient's face. When he had the oxygen mask on, you could see the patient's face. I am a bit fuzzy about how the pillow got there the second time. I think Dr A left it there but I cannot be sure. 210None of the other clinicians had any reason to be untruthful or to conspire against Dr A. Other than Dr C, none of the clinicians suffered any disadvantage that may have rendered their testimony unreliable. Dr C was clearly traumatised by what she believed she had witnessed. She said she froze and felt helpless to intervene. However, her evidence regarding the timing of the Haloperidol injection is wholly consistent with that of the other clinicians. In any event, even if I were to discount Dr C's evidence, there are three eyewitnesses as to the timing of the injection and their evidence outweighs that of Dr A. 211That means the Haloperidol was administered shortly after the Patient was woken up for the purpose of performing the bladder scan, prior to the Patient spitting at Dr A and prior to the placement of the Hudson mask. 212Accordingly, I find Dr A's evidence about the timing of the Haloperidol injection to be unreliable and it has caused me to take a more sceptical approach to other evidence of the applicant than what might otherwise be the case.

Purpose of the Haloperidol injection 213There was a dispute between Dr A and Dr C about the use of Haloperidol. Dr C said she asked Dr A what sedative he would use and she suggested Midazolam. The applicant said he told Dr C that he would not use Midazolam because of the associated risk of respiratory compromise in the EMU (as it required respiratory equipment to monitor the Patient) and that Haloperidol would be a more appropriate drug for the Patient as no monitoring was required. The applicant said he explained to Dr C that Midazolam could only be safely administered in the RESUS area with full monitoring, but that there were no beds currently available in that area. 214Dr C said that Dr A told her to write up 5mg of intramuscular Haloperidol to which she replied that she would prefer that the Patient be taken to the RESUS area and sedated with a short acting sedative such as Midazolam. Dr C said she also told Dr A that she did not think that Haloperidol was the right drug for the Patient as it would exacerbate his delirium and that the drug was not primarily a sedative and may fail to sedate the Patient adequately for the procedures. According to Dr C, Dr A then told her that she was wrong and that Haloperidol had a maximum duration of effect for 5 hours and because it was night time the Patient would sleep it off and thus directed her to write up Haloperidol. 215Dr C said that she told Dr A that she was not comfortable using Haloperidol as sedation and asked again whether Midazolam could be administered with appropriate observations. Dr A was then alleged to have told Dr C that the Patient was a "dry old man" and Midazolam could cause immediate threat to his airway so he was not prepared to give Midazolam. 216Dr C said that she felt that she was being criticised repeatedly and rudely by Dr A, she felt intimidated by him and his demeanour and that for these reasons she charted the Haloperidol even though she did not feel comfortable doing so. 217The respondent submitted Dr A fabricated and misrepresented the situation in relation to the purpose of the injection of the Haloperidol. 218Senior counsel for the respondent submitted it was evident from all of the contemporaneous documentation, investigation information and the respondent's affidavits that the purpose of the injection of Haloperidol was to sedate the Patient for the purposes of undertaking a bladder scan. 219It was submitted that at no time during the course of the internal investigation did Dr A contradict the assertion that the purpose of the Haloperidol injection was for sedation. In his response to the Health Care Complaints Commission, the respondent observed Dr A positively asserted that the Haloperidol was the more appropriate "sedation medication". 220The respondent submitted that the first time Dr A contended the Haloperidol was not for sedation was in his third affidavit where he asserted: I refer to paragraphs 31-41 of my Affidavit and note that the purpose of administering Haloperidol to the Patient was not procedural sedation to perform the FAST Scan, but to manage delirium. 221However, as the respondent correctly observed, nowhere in paragraphs 31-41 of Dr A's first affidavit was there any reference to the Patient being given Haloperidol let alone an explanation for its use. I am not sure what the purpose was of Dr A's reference to paragraphs 31-41 other than to provide some context for the statement in the applicant's third affidavit, which was in response to a statement in NM1's affidavit that the sedative effect of Haloperidol takes about 15-20 minutes. 222Dr A also said in his oral evidence that the injection that was not "a procedural sedation". The following exchange occurred in cross-examination: Q. Well I'm going to put a version of events to you, Dr A, as I'm required to do so that you can agree or disagree with me. But the version of events that I want to put to you is that you had the conversation with Dr C where you disagreed about the use of the Midazolam and you directed the use of the Haloperidol; that's correct, isn't it? A. Not correct, no. I said we might use the Haloperidol. Q. "We might use the Haloperidol"? A. Yep. Q. Just to be clear, on your version of events, you're now saying that the Haloperidol was never intended by you to be used as a sedation to do the bladder scan? A. Correct. It's not a procedural sedation drug under any circumstances. It's never used for that. Q. All the conversation you had with Dr C were about sedation for the bladder scan? A. According to Dr C, but not what I was talking about. I was being asked to manage a big picture situation. Dr C seemed to be focused on the bladder scan, I was focused on controlling a potentially violent patient in the EMU with regards to the next disposition. Haloperidol is to be used for delirium, it's not a procedural sedation drug. 223However, the respondent submitted, it was not until Dr A was cross-examined that he asserted that the purpose of the injection of Haloperidol was just in case it was needed or "in case he gets violent" or for "transport". 224Senior counsel for the respondent submitted these were recent inventions and simply implausible for the following reasons:

• On his own evidence, Dr A was well aware from his discussions with Dr C that the patient was "agitated, uncooperative and violent". He was also aware that Dr C needed his assistance to sedate the patient in order to carry out a bladder scan. However, on his version, Dr A did not administer the Haloperidol "in case the patient became violent" prior to the scan.
• On waking, the patient (predictably) did become violent but again, Dr A (on his version) did not order the Haloperidol at that time.
• It is therefore inconsistent that the Haloperidol was administered "in case the patient became violent". The time to have done that was before commencing any treatment of the patient or when the patient did exhibit violence;
• In relation to the "transport" explanation, Dr A only decided to transfer the Patient to RESUS after Dr C refused to hold the pillow over the patient's face and when Dr A had determined that it was not safe and effective to proceed with the ultrasound in EMU. However, on Dr A's evidence the injection for Haloperidol had already been given by the time he made that decision. In any event, Dr A did not wait for the Haloperidol to take effect prior to transporting the patient to RESUS. Therefore the purported explanation that the Haloperidol was for "transport" cannot stand. 225The respondent submitted it was not difficult to determine why Dr A fabricated his version of events: By re-characterising the Haloperidol injection as being for "transport" purposes, Dr A has sought to avoid the criticism made by the ED Staff Specialist, Dr D, Dr C and RN2 that a procedural sedation should not have been done in the EMU. In addition, Dr A may also have been seeking to avoid the criticism that if it was for sedation, Dr A did not wait for the Haloperidol to take effect. 226I do have some difficulty with the applicant's evidence regarding the purpose of administering Haloperidol. It was clearly the case that the Patient was "agitated, uncooperative and violent". If the intention was to perform a bladder scan or bladder ultrasound on the Patient in that condition, one wonders why it would be attempted without first adequately sedating the Patient. 227I note the applicant's evidence that in his conversation with Dr C before the pillow incident occurred he said sedation needed to be done in RESUS where proper monitoring equipment was available, but that no beds were available in RESUS. However, I note a bed was quickly found in RESUS after the pillow incident and where the applicant used Midazolam to sedate the Patient. One wonders why this could not have been done in the first place. 228Moreover, whilst Haloperidol has a sedating effect, the effect is not achieved for 15-20 minutes. The applicant proceeded to attempt to undertake the ultrasound very shortly after Haloperidol was injected into the Patient and well before it could be said the Patient was sedated. 229The respondent would have the Commission accept that initially the applicant considered that the purpose of the injection of Haloperidol was to sedate the Patient. However, that the applicant changed his mind when it came to giving his oral evidence to avoid criticism that a procedural sedation should not have been done in the EMU and to avoid the criticism that, if it was for sedation, he did not wait for the Haloperidol to take effect. No matter what the motive, it was submitted the Commission should find Dr A further fabricated evidence and this militated heavily against his integrity and his credit. 230In defending Dr A's choice of Haloperidol, senior counsel for the applicant submitted it was apparent that Dr C was looking to sedate the patient using Midazolam for the purpose of a procedure - the bladder scan - which Dr C proposed should be carried out in RESUS. On the other hand, it was submitted the applicant was giving consideration to sedation that would also treat the Patient's delirium if it were needed, but did not regard Haloperidol as a procedural sedation. It was Dr A's opinion that Haloperidol would be more effective given the Patient's condition. It was submitted the applicant's evidence in this regard had not been inconsistent and that the fact was that Haloperidol was both a sedative and a treatment for delirium. 231In seeking to deal with the respondent's reliance on the Haloperidol issue, the applicant called Dr Tarra Shaw, a psychiatrist, as an expert witness. Since 2006 Dr Shaw worked as a Consultation-Liaison (CL) psychiatrist who provides diagnostic and management advice to other clinicians, usually in a general hospital, regarding the patients the clinicians are treating in EDs and Medical and Surgical wards. Dr Shaw indicated that a significant number of patients that CL psychiatrists see in this way have delirium. She said CL psychiatrists become quite specialised in the management of delirium patients. Dr Shaw also indicated she possessed an advanced training certificate in consultation liaison psychiatry with the Royal Australian and New Zealand College of Psychiatrists, which was a two year course specifically looking at medications that are used in medically unwell patients with psychiatric problems such as delirium. 232The applicant also tendered two reports by Dr Shaw that had been sought by the applicant's solicitors. The solicitors had provided Dr Shaw with copies of the affidavits of Dr B, Dr C and Dr R, Director, Clinical Governance of the Health District and Professor of Public Health at the University of Sydney and Conjoint Professor of Public Health at the University of NSW. The solicitors had also provided Dr Shaw with 41 Assumptions on which she was to base her reports. 233In the first report Dr Shaw expressed opinions in relation to the following questions put to her: Question 1: Dr A's decision to prescribe haloperidol rather than midazolam to sedate the patient in the Emergency Medical Unit (EMU). Question 2: Dr A's overall management of Patient 1. 234In the supplementary report, Dr Shaw reviewed the affidavits she had been provided with. 235The respondent challenged the admissibility of Dr Shaw's reports. It was submitted the Assumptions were not assumptions but statements asserting the correctness/appropriateness of what Dr A did and then asking if what Dr A did was appropriate. It was submitted that Dr Shaw's opinions were consequently attended by an apprehension of bias. 236It was further submitted that Dr Shaw did not have the requisite qualifications to give expert evidence: see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 including that she did not possess specialised knowledge on the selection of drugs: C A Henschke & Co and Anor v Rosemount Estates Pty Ltd [1999] FCA 1561; (1999) 47 IPR 63. 237The issue of the admissibility of Dr Shaw's evidence was the subject of voir dire proceedings. In those proceedings it was Dr Shaw's evidence that:

Crouching down/leaning over 254The respondent observed that after the internal investigation, Dr A made a handwritten note on the transcript that he was "a little bent over" when holding the pillow. It was noted Dr A had not said that in the internal interview and it was not mentioned in his written response dated 6 June 2013, which was prepared prior to the interview. 255The respondent submitted that description was abandoned and in later correspondence and in all of his affidavits in these proceedings, Dr A has asserted that when he was holding the pillow over the Patient's head, he held it 10 cm away from the Patient's face and that he was "crouching down" and, therefore, visualising the distance between the pillow and the Patient's face. 256The respondent referred to the applicant's second affidavit, where he stated: .... I was crouched down close to Patient 1 so that my face was in line with Patient 1's face. ...because I was crouching down next to Patient 1's face I could see his mouth and monitor his airways. 257The respondent submitted this evidence was a fabrication: It was a thin attempt by Dr [A] to paint himself as having acted in a responsible manner. It lacked any credibility if only for the fact that, in the same breath, Dr [A] asserted that he used the pillow "in the spur of the moment" and if that were the case, he would hardly have been likely to have carefully thought to position himself to measure the distance between the patient and the pillow. 258It was further submitted: (1)crouching down was not a body movement replicated by Dr A in his home "video"; (2)it was not a matter put to any of the respondent's witnesses. However, even if it had been put to the Respondent's witnesses, it would have been contradicted by Dr A's own evidence when, in cross-examination and for the first time, he asserted that the term "crouching down" actually meant "leaning over" the top of the pillow; (3)Dr A further exaggerated this contention by saying (again for the first time) that as he was leaning over the pillow he was moving the pillow up and down as the Patient's head was moving in order to ensure that it remained a distance away from the Patient's face; (4)this second more elaborate version was also never put to the respondent's witnesses. The up and down movement of the pillow was not demonstrated in the home video. It was not asserted in the internal investigation. Moreover, it is inconsistent with Dr A's own evidence that the Patient's face may have come into contact with the pillow because the Patient was moving around; 259In responding to this attack on the applicant's credit, senior counsel for the applicant submitted: (1)the respondent's fixation with the distinction between crouching and leaning, and the pillow being moved up and down, ignores the fact that the entire incident involving the use of the pillow lasted for 5 -10 seconds. It was a flash of a moment; (2)the entire premise of the respondent's submissions is that the terms "crouching down" and "leaning over" are not synonymous in the context of the persons who were all standing adjacent to the bed and over the Patient, with the bedrails up. As the site visit made clear, in order to hold the pillow above the Patient's face, with the handrail in the way, the applicant would have had to lean in and crouch. None of this is surprising. What is important is the actual physical demonstration that the applicant provided in the witness box, which more than words described exactly the physical position he had taken at the time; (3)as the respondent's submissions ignore that the use of the pillow lasted for 5-10 seconds, the respondent's assessment of the movement "up and down" of the pillow is highly exaggerated; (4)the purpose of the home video was to indicate the parallax error. It was in no way inconsistent with the applicant's evidence. 260In my opinion, "crouching down" and "leaning over" connote different bodily positioning. To crouch is to "lower the body with one or both knees bent, in any position which inclines the trunk forward" (Macquarie Dictionary On line edition, Macmillan Publishing Group Australia, 2014). To lean is to "incline or bend from a vertical position or in a particular direction" (Macquarie Dictionary). I am sceptical about the assertion by the applicant that he was "... crouched down close to Patient 1 so that my face was in line with Patient 1's face..." In order for that to have been the case, and with the bed rails up, the applicant would need to have been leaning well over from the upper part of his trunk, with knees straight rather than crouching down with one or both knees bent. 261However, I cannot discount the possibility that Dr A used a poor choice of words to describe what he was doing. Nevertheless, it is not easy to accept that the applicant was leaning over to such a degree that his face was in line - that is, horizontal - with the Patient's face and he could see his face under the pillow and monitor his airways. In my view, if that is what the applicant claimed occurred, it was an untruth. 262The alternative is that the applicant was leaning over the bed rails so that his face was close to the Patient's face in a perpendicular or vertical sense and he was moving the pillow to keep track of the position of the Patient's face vis a vis the pillow and peering over the top of the pillow, as he said in his oral evidence. If that was the case, the applicant's description in his second affidavit ("crouched down close to Patient 1 so that my face was in line with Patient 1's face"; "I was crouching down next to Patient 1's face I could see his mouth and monitor his airways") was a less than apt description of what occurred. Moreover, if this is what occurred, why could Dr C not also see that the pillow was not touching the Patient's face? Dr C was standing directly opposite Dr A adjacent to the Patient's neck and head looking down at the Patient. The applicant's contention was, however, that because of "parallax error" Dr C could not see the distance between the Patient's face and the pillow. 263The only other way that I am able to imagine the applicant could see the distance between the Patient's face and the pillow without Dr C being able to do so, is if the applicant was leaning over the bed rail to a considerable extent and peering under the pillow from an angle of 45 degrees or more, measured from a vertical line extending straight up from the position of the Patient's head to the position of Dr A's head, as he peered under the pillow. But that is hardly consistent with the proposition that the applicant was "crouched down close to Patient 1 so that my face was in line with Patient 1's face". Moreover, if Dr A could see from this position that the Patient's face was 10 cm from the pillow why could not the clinicians standing towards the foot of the bed? 264The applicant's evidence regarding how he was positioned to ensure the pillow was not touching the Patient's face was not consistent and barely viable.

Angle of the pillow 265The respondent submitted that in his interview with the internal investigator on 6 June 2013, Dr A asserted that the pillow created a parallax error because he was holding it almost vertically in order to stop the "stream of spit" from the Patient. However, in his affidavit evidence Dr A asserted that he was holding the pillow horizontally over the Patient's face. 266The respondent observed that, in the video, Dr A said that he was demonstrating how he was holding the pillow on the night and is seen holding the pillow at an angle. In cross examination Dr A's evidence was that the pillow was almost horizontal (i.e., parallel to the bed), then his evidence was that the pillow was not horizontal or vertical, but was tilted and then he said it was tilted parallel to the Patient's face. 267The respondent submitted the versions could not be reconciled and this inconsistency was adverse to Dr A's credit. 268The applicant submitted that consistent with the video the pillow was held at an angle or a tilt. This was consistent with the evidence that the applicant gave in cross-examination that the pillow was tilted, which he confirmed in the physical demonstration in the witness box. 269Importantly, the applicant submitted, none of the respondent's witnesses were called on to dispute the applicant's evidence; none of them suggested that they could see through the pillow or that anything of any significance turned on the angle at which the pillow was held. 270I do not consider any inconsistency about the angle of the pillow is such that it warrants an adverse finding regarding the applicant's credit.

Parallax error 271The respondent submitted Dr A's assertion of parallax error of three witnesses looking from three different angles was not credible. In any event, as Dr A agreed, there was no parallax error of these witnesses' view of his body stance as he pushed the pillow onto the Patient's face. 272The applicant submitted the respondent's submissions provide no coherent argument as to why parallax error was not present. It was untenable to suggest that there was no parallax error and, indeed, Dr C, RN1 and RN2 all agreed that they could not see through the pillow. Dr B was clearly in the same position as the other witnesses. 273A parallax is "a misalignment in the comparison of two locations due to the relative position of the observer": Macquarie Dictionary. Parallax error occurs when a person's line of sight is not properly lined up to take a measurement. 274The applicant had asserted through his solicitors during the internal investigation that parallax error had occurred because the positioning of other staff members who were standing behind the pillow meant they were unable to see how far the pillow was from the patient's mouth. It was asserted Dr A was the only person who was able to see how far the pillow was from the Patient's mouth. The applicant's solicitors had asserted this was because Dr A "was slightly crouched down so that he could clearly see the distance between [the Patient's] face and the pillow to ensure it remained at a safe distance whilst functioning as an effective spit barrier." 275There was no such thing as parallax error occurring. The simple proposition by the applicant was that he could see the distance between the pillow and the Patient's face (because he was slightly crouched down), but the other clinicians could not because they could not see through the pillow. 276If the applicant was only "slightly crouched down", that is knees slightly bent and body slightly lowered, I gravely doubt he could see the Patient's face for the reasons I gave in relation to "crouching down/leaning over".

The Hudson mask 277The respondent submitted the four eyewitnesses it called gave evidence that the Hudson mask, applied by RN2, was applied properly. RN2 gave evidence that she had applied them many times and well knew how to do so. 278The respondent observed that Dr A was the only person who asserted that the Hudson mask was not properly applied. Further, Dr A's evidence was that the Hudson mask was "still folded" and sitting on the Patient's cheek. 279The Hudson mask was in evidence. The respondent submitted even a cursory examination/ demonstration of it illustrated that if the elastic band was placed around and behind a person's head, the mask itself could remain "folded". The respondent explained that the sides of the mask separate, thereby opening it up, as the elastic is pulled in opposite directions to go around the head. The respondent submitted there was no assertion by Dr A that the mask had simply been placed on the Patient's face without the elastic being applied behind his head and certainly that was not put to any of the respondent's witnesses. 280The respondent submitted this was another example of Dr A's exaggeration or fabrication of evidence. 281In any event, it was submitted, even if Dr A's evidence was to be accepted that the Hudson mask had dislodged from over the patient's mouth, the use of the pillow (a second time) was entirely unwarranted when the most obvious course of action would have been to request the nurse to re-position the Hudson mask. 282I have a real difficulty understanding why the applicant would find it necessary to place a pillow over the Patient's face to prevent spitting if the Hudson mask was properly applied and prevented any spitting to occur. There is also the possibility that although the mask was initially applied properly the possibility cannot be discounted that the violent motion of the patient dislodged the mask. 283Whilst the applicant's evidence regarding the mask is inconsistent with the evidence of the other clinicians I am prepared to give the applicant the benefit of the doubt regarding the placement of the Hudson mask.

Spit: a stream or waterfall? 284The respondent submitted a further example of Dr A's exaggeration was to be found in his description of the Patient's spitting. 285The respondent conceded that when the Patient spat at Dr A, it was a noticeable amount of spit. However, it was submitted, the same could not be said of the Patient's spitting thereafter. 286The respondent observed that in the internal investigation interview, Dr A stated that on his return from washing his face, the Patient "continued to spit". Dr A then said he used the pillow (after the Hudson mask had been applied) as a spit shield because the spit was a "stream which continued". 287During cross-examination, Dr A's description of the patient's spitting escalated from a steady stream to a continuous flow of spit coming out at himself and the other clinicians and then he said it was like a "waterfall". Dr A described the patient as being at risk of choking on his own spit. 288As the respondent submitted, no one other witness described the Patient's spitting in those terms or anything approaching it. 289The respondent submitted Dr A's exaggeration of the Patient's spitting was intended to support his proposition that there was imminent danger from the Patient spitting so that he was, in some way, justified in his use of the pillow even though the Hudson mask had been applied. 290In my opinion, it was an exaggeration to claim the spit was a stream or a waterfall. That a patient, described by the applicant as a "dry old man", was capable of producing such an amount of spit it could be regarded as a waterfall is fanciful and not supported by any other evidence. 291I do not take a particularly adverse view of this exaggeration, although it does not encourage a favourable opinion of the applicant's credibility.

Thoughtful consideration 292The respondent submitted a further example of Dr A's exaggeration and fabrication of evidence, was his assertion that when he returned from washing his face, he engaged in two to three seconds of "thoughtful consideration." As the respondent observed, Dr A said that in this period, he thought carefully about the safety of the patient, the safety of the other clinicians and his own safety and only after having undertaken that consideration, did he pick up the pillow and use it as a makeshift spit shield. It was also during this time that Dr A said he was undertaking an assessment about the efficacy of the Hudson mask or a non re-breather mask. 293The respondent submitted none of that evidence sat comfortably with Dr A's assertion that he picked up the pillow "on the spur of the moment". 294Senior counsel for the respondent submitted Dr A's evidence of this "thoughtful consideration" was a fabrication, an embellishment to portray himself in a positive light, as taking into account safety issues and patient care. This, the respondent said, was false because if there had been any thoughtful consideration of safety issues and patient care, the logical and viable options would have been: (a)To direct that the Hudson mask be re-positioned (if it had truly become dislodged); and/or (b)maintain observation and restraint of the patient until the sedative took effect; and/or (c)ask [RN2] to look in the utility box for other PPE or go elsewhere to obtain face-shields or more suitable PPE. 295In relation to PPE, the respondent said it was notable that during the internal investigation, Dr A asserted that there was no utility box at all next to the bed and that normally he could have reached in and grabbed something. This, the respondent said, was untrue. 296The respondent submitted: Dr [A's] assertion about his "thoughtful consideration" also sits uncomfortably with the fact that he had been absent from the patient for some 30 seconds whilst he was washing his face. If he had not been impatient and angry (as the Respondent contends), he would have utilised that time (or at least the time walking back from the sink) to consider what to do. Given that [RN2] gave evidence that he had gone in the direction of the sink near the pan room to wash his face, Dr A would have been in the immediate vicinity of the crash cart where the PPE was stored and if he had been thinking about safety issues (which he was not), he could have easily obtained some PPE. 297The respondent contended Dr A's "thoughtful consideration" ought to be found to be a fabrication. 298Senior counsel for the applicant submitted the respondent's submissions unfairly and unjustly mischaracterised the applicant's evidence. The applicant's evidence was that he gave "thoughtful consideration" in the two to three seconds he had to assess the situation upon his return to the bed. Any thoughtful consideration was necessarily limited to the time he had available to him to make a judgment. 299Counsel said it was probably correct that with the benefit of hindsight other viable options were available to the applicant and he had conceded that to be the case. However, that did not mean he gave no consideration at all to the safety of the Patient, his colleagues and himself. This is what he attempted to do by his spur of the moment decision to use the pillow as a spit barrier. 300The respondent's submissions regarding "thoughtful consideration" and about what the applicant actually thought and what he should have thought do not constitute a sound basis upon which I would find it was a fabrication. I do, however, consider the use of the phrase "thoughtful consideration" by Dr A was an embellishment that only served to heighten my scepticism about the reliability of Dr A's evidence.

The video 301Dr A and his spouse made a video recording. The purpose of the video was, in the words spoken by Dr A on the video, to demonstrate what occurred during the pillow incident. 302Dr A's evidence was that the bed utilised in the video was a Queen or King size bed and his wife (whilst holding the camera) was kneeling on the bed and moving around to different locations (as Dr A nominated where witnesses were standing) with the camera focused on Dr A. 303A soccer ball lying on the bed was said to represent the Patient's head and Dr A is shown holding the pillow. 304The respondent submitted the video misrepresented the following matters and/or was inconsistent with other evidence: (a)from the site inspection and the photo of the EMU Bed, it is evident that an EMU bed is significantly narrower that the bed in the video. However, there was no marking on the bed in the video showing the width of an EMU bed. Although difficult to ascertain accurately, it is fairly clear that the position where Dr A's wife was said to be kneeling on the bed when she was opposite Dr A, was at a greater distance than for an actual EMU bed; (b)from the site inspection and the photo it is evident that an EMU bed is significantly higher off the ground than the bed in the video; (c)Dr A is holding his left arm straight in the video. If that was how he was holding the pillow on the night, then because an EMU Bed is significantly higher, the pillow would have been on the Patient's face; (d)it is common ground that the handrails were up and that is not taken into account at all in the video; (e)the height at which the camera was held, if Dr A's wife was kneeling on the bed and looking through the view finder would be different than the line of sight of the witnesses standing next to an EMU bed. Even though Dr A said his wife and he had made adjustments for that in rehearsal, that evidence ought to be regarded as recent invention. That was the first time any such qualification was made in relation to the video and there is no evidence that Dr A was aware of the height of the witnesses; (f)further, it is apparent from the video itself that the camera was being held at or above Dr A's head when showing the alleged line of sight for Dr C and RN1, but when the camera was purportedly showing the angle of Dr B's line of sight, the camera dropped down, below Dr A's shoulder; (g)the soccer ball is stationary and all of the evidence was that the Patient was moving his head; (h)the soccer ball sits wholly above the mattress when a human body would sink in to a mattress; (i)Dr A states on the video that he is holding the pillow as he did on the night. However, it is apparent that it is only when the camera moves to a position at the top of the bed, when his wife his standing on Dr A's right hand side, that the soccer ball is visible; (j)in his correspondence during the investigation and in his affidavits, Dr A asserted that he was "crouching down" but in the video, his stance was standing; (k)in cross-examination, Dr A gave evidence that "crouching down" meant "leaning over" the top of the pillow and he is certainly not doing that in the video; (l)further, in cross examination the following exchange took place: Q. And you're leaning over the top of the pillow. And what are you doing? You're moving the pillow up and down, are you, to keep it away from his face all the time? A. Yes, most definitely. ... Q. So you're moving the pillow now? A. I must have been, yeah, because I remember being very conscious of keeping it off the patient's face. 305The respondent observed that in the video Dr A stated that he was "holding the pillow in the same manner as he did on the night". However, he was not moving the pillow up and down. 306The respondent submitted the video was another false account by Dr A and added further support to the respondent's contention that he has been untruthful. 307In responding to the respondent's critique of the video, the applicant submitted the respondent mistook the true and proper purpose of the home video made by the applicant, that being to convey parallax error and the line of vision of the other witnesses. 308In specific response to the respondent's submissions, the applicant submitted: (a)the video did its best to simulate the hospital bed scenario. It is clear from the position where the video footage has been taken that the Applicant's wife was not standing at the edge of the Applicant's bed, but was kneeling on top of the bed. In any event, if the hospital bed was narrower than where the Applicant's wife was kneeling, the parallax error would have been greater as the other witnesses are unlikely to have been able to see under the pillow; (b) the height of the bed was sought to be simulated by the Applicant's wife kneeling on the bed. It is apparent from the video that it is taken from a height and there is no basis for the assertion that the Applicant's evidence in this regard was a recent invention; (c)the contention regarding how Dr A was holding his left arm leads to a physical impossibility and is rejected; (d)that the handrails were up only makes it more unlikely that the Applicant could have forced the pillow into the face of the Patient if he was holding it with his left hand in the centre of the pillow. Unlike the Applicant, the Respondent has made no attempt to provide the Commission with any assistance as to the manner in which it alleges that the Applicant applied the pillow to the face of the Patient whilst holding it with his left hand and leaning or crouching over the handrails. Of course, the Respondent has never tried to explain the even more bizarre assertion from Dr C that all edges of the pillow were touching the bed sheets; (e)the Commission is invited to review the video to make its own assessment as to whether it has fairly accounted for the lines of sight of the various witnesses; (f)the Respondent makes the trite observation that the soccer ball was stationary, as if somehow the Applicant should have simulated a moving head. However, the movement of the Patient's head is, in fact, inconsistent with the Respondent's case. If the Patient's head was moving, it was hardly being smothered. Further, it is more consistent with the Applicant's case that the Patient was continuing to lunge and his head may have come into contact with the pillow in an inadvertent manner; (g)there is no evidentiary foundation for the assertion that human head would "sink into a mattress", or that it would sink into a mattress of a hospital bed. Common sense suggests that this would depend on the firmness of the mattress. Again, if the Respondent wished to contradict the Applicant's evidence, it should have called its own evidence in this regard; (h)the Applicant in the video is, in fact, leaning into the bed and is slightly crouched over the top of the ball with the pillow. The Applicant's position in the video is exactly as he has described it in his evidence. As noted above, with the handrails of the bed in the up position, it is difficult to have reached the Patient without leaning and crouching slightly; (i)the entire incident lasted 5-10 seconds and the Applicant in the video was holding the pillow as best as he could recall he held it in those few seconds. 309Having viewed the video I did not find that the video was of any particular assistance. It was a simulation conducted in an environment completely foreign to where the pillow incident occurred, it is tainted by being self-serving and I fear that to have regard to it I may be misled.

Applicant's hand drawn diagrams 310On 12 August 2013, Dr A responded to the Health Care Complaints Commission and provided hand drawn diagrams indicating where (in his version) he and everyone else were standing at the time when he utilised the pillow. 311The respondent submitted the diagrams were distorted such that they must be seen as misrepresentative. The respondent submitted the diagrams were false in the following respects: (a)the first diagram has the utility box sticking out from the wall, well into the centre of the bed. At the site inspection, the utility box was on a column adjacent to the area, leaving a gap between that column and the bed. Further, the utility box stood out no more than 30 centimetres from the wall, so that even if the events took place in EMU Bed 9 (which is denied), its size would still not have been as represented in the first diagram; (b)the distortion as to the placement and size of the utility box meant that the circle representing Dr C is physically unable to be placed at the top of the bed (where she said she was located). However, if accurately portrayed as being on the column (or even on the wall) Dr C was able to stand where she said she was, at the top of the bed. (c)in the first diagram, the bed is placed close to the wall. From the site inspection and the evidence given by a number of witnesses, the placement of the EMU beds is made according to a line of the floor, which then sets the bed out from the wall. In any event, abutting the bed to the wall would have made access to the panel containing the oxygen valves etc., impossible. The distortion has the effect of placing the witnesses further down the bed and away from the pillow; (d)in the first diagram, the placement and size of the ultrasound scanner were out of proportion; (e)the circle representing Dr B is misplaced, as she was standing right next to Dr A at the level of the Patient's waist; (f)the second diagram is wholly unbelievable as it has the head of the bed tilted upwards - a fact not asserted by Dr A anywhere else. Further, the contention that the head of the bed was tilted was not put to any of the eyewitnesses. 312In responding to the respondent's criticisms of the diagrams, the applicant submitted the purpose of the diagrams was to be a visual aid to the Medical Council and it would expected that members of the Medical Council would be well aware of the configuration of hospital beds and utility boxes. 313Further, and in any event, it was submitted the respondent's eyewitnesses all gave different versions, or none at all, as to where the bed was positioned, where the utility box was positioned and where Dr B was standing. Everyone, other than Dr B, had her standing in a different position. Further, only RN2 gave evidence that the bed was about one metre away from the back wall. The applicant submitted that given the inconsistencies in the respondent's own case, it was not tenable for it now to attempt to present a coherent case about these matters or to unfairly accuse the applicant of a fabrication or distortion. 314I do not find the hand drawn diagrams were a deliberate attempt by the applicant to mislead. The diagrams were very roughly drawn with a view to demonstrating approximately where each clinician was standing in relation to the bed. I would say, however, the diagrams had a potential to mislead. The position of the utility box on the left hand side looking from the end of the bed - which I accept was Bed 8 - did not extend out as far as depicted and the ultrasound machine was not obstructing the applicant. Further, that the depiction in one of the diagrams that the head of the bed was tilted upward was not something asserted by Dr A in any of his other evidence including in the video, nor was it contended in any submission made by the applicant and nor was it mentioned by any other witness. I do not accept the head of the bed was tilted upwards. Dr A's recollection in that respect was faulty.

Conduct and behaviour of Patient 315The respondent submitted that Dr A had, through the course of giving his version of events, exaggerated the conduct and behaviour of the Patient in order to provide support for his story that he applied the pillow out of concern for the Patient's safety and that of the staff. 316The respondent accepted that the Patient was in delirium and that he was exhibiting aggressive and non-cooperative behaviour. However, it was observed the Patient was 94 years old and of slim build. Further, at the relevant time, the Patient had been given a sedative. 317The respondent also accepted that the Patient was trying to sit up. However, it was noted "this frail patient was being adequately kept in bed by 3 people for most of the time (Drs C and B and RN1)." It was submitted: Dr [A] had no compunction about the safety of his colleagues when he let go of the patient to do the scan or when he left the EMU to wash his face, or when he left again to go and get the Nurse Co-ordinator in Resus, each time without any communication to his colleagues. 318The respondent submitted four other clinicians all said that they had experienced spitting from patients before and that it was not uncommon. None of them said that they felt they were in danger from the spitting. None of them said anything to that effect at the time and Dr A never inquired of them whether they were concerned about the spitting. 319The respondent observed that none of the other clinicians said that they thought the Patient could have "leapt out of the bed" (as asserted by Dr A). 320The respondent submitted Dr A, on the other hand, consistently exaggerated the Patient's behaviour. In the clinical notes, Dr A described the Patient as having "jumped out of bed" when describing the earlier fall earlier in the night. In cross-examination, he conceded this was an exaggeration. 321Dr A continued in the clinical notes by stating: In EMU, I attempted to gain control of his violence thru (sic) IMI Haloperidol as it was not apparent had a (sic) IV in. He spat in my face twice and punched me. ... He was in danger of jumping out of bed again.... 322It was submitted this exaggeration, when taken together with Dr A's other fabrications was evidence of his dishonesty. 323The applicant, on the other hand, submitted his evidence as to the Patient's behaviour was consistent with the evidence given by other witnesses: As noted in the Applicant's Primary Submissions, Dr C herself had experienced the Patient's violent behaviour earlier in the evening and had described him as climbing the walls. She had also exposed RN2 to being assaulted by the Patient, though RN2 was pregnant. RN1 said the Patient lurched and spat at her and had wild eyes. Dr B gave evidence that the Patient was lunging and trying to get up. The Respondent's post fact attempts to downplay the Patient's behaviour should be rejected. It should be held to the evidence which it called in its own case. 324It is quite apparent from the evidence that the Patient was acting in an aggressive manner. He reacted violently when approached, he lashed out and punched clinicians, he was spitting and it was necessary to restrain him. The Patient represented a danger to himself and to the treating clinicians. 325I do not consider the applicant overstated the Patient's conduct to the extent it would be regarded as an exaggeration adversely affecting the applicant's credibility.

Conclusions regarding credit 326I am unable to find the applicant was a completely credible and reliable witness. That flows from my findings regarding the timing of the Haloperidol injection, the purpose of that injection and crouching down/leaning over. The applicant was also prone to a degree of exaggeration designed to favour his case. 327Consequently, I have approached the critical question of whether Allegation One should be sustained with a greater degree of scepticism about the applicant's version of what occurred than what otherwise would be the case.

Whether the applicant used the pillow twice 328I earlier found that after the Hudson mask had been applied, and after the applicant had returned from washing his face, the applicant picked up the pillow and used it in some way in relation to the Patient, but that he did not forcefully apply the pillow to the Patient's face. 329The applicant claimed this was the only occasion on which he used the pillow in any way at all. The allegation is, however, that on an earlier occasion the applicant had also picked up the pillow and forcefully applied it to the Patient's face after being spat upon following an attempt by Dr A to perform a bladder scan on the Patient. This was Allegation One, which was sustained by the respondent's Chief Executive and constituted the essential reason underpinning the decision to dismiss Dr A. 330Dr C, Dr B, RN1 and RN2 gave evidence that Dr A used the pillow on two occasions. The first occasion was after being spat upon by the Patient. This occurred shortly after the Haloperidol injection and as Dr A attempted to carry out the bladder scan. The second occasion was after Dr A returned from washing the spit off his face and, according to Dr A's evidence, found it necessary to use the pillow as a spit shield because the Hudson mask that had been applied by RN2 had become dislodged from covering the Patient's mouth. 331I have no doubt that the pillow was used twice by Dr A. There is no basis to disbelieve the other four clinicians on this point. Accordingly, I do not accept Dr A's evidence that the pillow was used only once. 332The sequence of events was, in my opinion, as follows: (1)Dr A and Dr C had a second discussion about sedation for the purposes of undertaking the bladder scan. In that discussion Dr C told Dr A that the patient ought be taken to RESUS, administered Midazolam, undergo a bladder scan and have a CT brain scan. (2)Dr A said to Dr C she should chart 5mg Haloperidol for an intra-muscular (IM) injection as the correct sedative and that a CT brain scan was unnecessary. (3)Dr C charted the Haloperidol. (4)RN2 obtained and prepared the Haloperidol. (5)Dr A, Dr C and RN2 attended the Patient. RN1 and Dr B came to assist. (6)Dr A approached the Patient and woke him up. The patient became verbally and physically aggressive. (7)The Patient was rolled on to his left hand side. RN2 administered the Haloperidol into the Patient's right buttock. Haloperidol takes about 15-20 minutes to effectively sedate a patient. (8)The Patient was then rolled on to his back. (9)The Patient was being held down. His gown was lifted up to expose his skin for the purpose of the scan. (10)Dr A did not wait for the Haloperidol to take effect before commencing the bladder scan. (11)At this point, looking from the foot of the bed towards the head of the bed, the attending clinicians were placed as follows: (a)Dr A was standing on the right hand side of the bed at the level of the patient's shoulders/ neck. (b)Dr B was standing on the right hand side of the bed, at a point between the Patient's waist and the lower end of the bed. Dr B said she was holding the Patient's left arm. The weight of the evidence was that Dr B was holding a leg of the Patient. (c)Dr C was on the left hand side, at the top of the bed, at the level of the Patient's shoulder/neck/head. She was holding the Patient's right arm. (d)RN1 was on the lower left hand side of the bed, concentrating on the Patient's left leg. (e)RN2 was moving from her position on the left hand side of the bed where she had administered the Haloperidol, and then stood at the bottom of the bed. She was holding the kidney dish in which the used syringe had been placed. (12)Dr A picked up the probe of the ultrasound scanner and turned to place the probe on the Patient. (13)The patient spat at Dr A. (14)Dr A then picked up the pillow. What he did with it is, of course, the critical question. That will be considered under the next heading. (15)Dr A said nothing to his colleagues about what he was doing or why. (16)Dr A then let go of the pillow and left EMU Bed 8 to wash his face. Before leaving, Dr A said nothing to the other clinicians present. (17)Dr A was absent for about 30 seconds. (18)In that time, RN2 went to the blue utility box situated on the left side of the bed on a column abutting the wall behind the bed, obtained a Hudson mask and applied it to the Patient's face. (19)When Dr A returned, he did not communicate with any of the other clinicians. He went back to the top of the bed, picked up the pillow and used it as a spit shield. He stated words to the effect "this will not impair his ventilation". He asked Dr C to hold the pillow. Dr C refused and dropped the pillow to her side. (20)Dr A directed RN2 to get restraints. (21)RN2 returned in about 20-30 seconds and the restraints were applied. (22)Dr A then left EMU Bed 8 again. He spoke to the Nurse Co-ordinator and obtained a bed in RESUS for the Patient. (23)Dr A then returned to EMU Bed 8, did not communicate any request to the other clinicians for help and moved the bed to RESUS by himself. (24)In RESUS, Dr A administered IV Midazolam. The patient was sedated within 30 seconds. He carried out the bladder scan, inserted a catheter and then arranged for the Patient to have a CT brain scan. 333Because I have not accepted Dr A's evidence about this significant issue the question arises as to whether I should find he was untruthful, which is tantamount to accusing him of perjury, a criminal offence. 334Again, the respondent did not put to the applicant in cross-examination that he was being deliberately misleading or untruthful, so I had no opportunity to consider his response and demeanour in answering such a strong accusation. There is an obvious motive in Dr A denying the use of the pillow on the first occasion, but such was the weight of the evidence against him, it is difficult to believe an intelligent man like the applicant would deliberately lie and expose himself to an accusation tantamount to perjury by providing a version of events that could not possibly be accepted on any reasonable basis. 335I am not prepared to find the applicant was deliberately untruthful about the use of the pillow on the first occasion including for the reason there exists the possibility that the applicant's recollection of events was faulty and, therefore, unreliable. .

Whether applicant forcefully applied the pillow to the Patient's face 336The applicant maintained that the incident alleged in Allegation One never happened at all. I have found that Dr A, after the Haloperidol injection and after being spat on by the Patient, picked up the pillow. The critical question is what he next did with the pillow? The allegation against Dr A is that he forcefully applied it to the Patient's face. Is that allegation made out? That is a question I have found very difficult to answer. 337It is a legitimate question to ask that if the applicant's evidence in relation to other aspects of his evidence is unreliable, why might that not also be the case in relation to the critical issue? Indeed, given the criticality of the issue of whether the pillow was forcefully applied, was the applicant untruthful in his evidence? 338The approach I have taken is to recognise that the onus falls upon the respondent to prove the applicant forcefully applied the pillow. The onus is not upon the applicant to disprove it. 339I need to be reasonably satisfied beyond "inexact proofs, indefinite testimony, or indirect inferences" that the applicant forcefully applied the pillow. I am dealing here with an allegation that is tantamount to assault by a medical practitioner on his patient. The consequences of a finding against the applicant would in all likelihood spell the end of his career in emergency medicine. A specialist in emergency medicine is a valuable community resource. One does not dispense with such a resource without a compelling reason for doing so. 340Despite being very troubled by aspects of the applicant's evidence, and with a high degree of scepticism about Dr A's version regarding the use of the pillow, I am ultimately unable to find that Dr A forcefully applied the pillow to the Patient's face. My reasons are set out in the following paragraphs.

Briginshaw standard applied 341I am required to apply the civil standard of proof, that is, on the balance of probabilities. For the reasons I gave earlier, in applying that standard I have had regard to Briginshaw and s 140 of the Evidence Act.

Not all witnesses saw the pillow come into contact with the Patient's face 342None of three clinicians present (Dr C, RN1 and RN2) actually saw the pillow come into contact with the Patient's face. None of them could see what was happening under the pillow. Nevertheless, Dr C and RN2 concluded that Dr A had forcibly pushed the pillow into the Patient's face because of the position and actions of the Patient, the movement of the pillow as Dr A pushed it down and Dr A's body stance as he applied the pillow to the Patient's face. Dr B maintained that the Patient was trying to sit up and Dr A forcefully applied the pillow to the Patient's face and "physically pushed the patient back using the pillow against the patient's face back down onto the bed." 343Dr C's affidavit evidence was that Dr A held the pillow "hard down on the patient's face. ..."; that Dr A: ...held the pillow down for some time. He used one hand over the centre of the pillow and his right hand was on the edge of the pillow. Dr A was applying pressure through the pillow. I can't say for sure how long Dr A held the pillow down but it seemed like a long time. I would say definitely 60 seconds and after that the pillow remained in contact with the Patient's face but the pressure wasn't as bad. 344In the record of interview, Dr C stated that when Dr A used the pillow on the first occasion: One hand was firmly over the centre of the pillow which was the part of the pillow that was making contact with the patient's face and his right hand was on the edge of the pillow. So he wasn't applying force with both of his hands but with one hand on that occasion. 345When Dr C was asked "...how were you able to tell whether the pillow was making contact with the patient's face?" She responded as follows: The edges of the pillow were making contact with the bed sheets, so it was clearly being applied, I mean the patient's face is elevated above where the bed sheet is, so I find it difficult to understand if the edges of the pillow were making contact with the bed sheets, if it wasn't making contact with the patient's face as well the patient's chin was in contact with the edge of the pillow so it was definitely in contact with the patient's face. 346If the applicant was forcing the pillow into the Patient's face with his left hand, there does not seem to be any necessity to have his right hand on the edge of the pillow, unless he was seeking to ensure the pillow did not come into contact with the Patient's face. 347Further, if Dr A used the pillow to drive the Patient's head into the bed with such force that the edges of the pillow were making contact with the bed sheets and this was done for a period of "definitely 60 seconds" it seems almost inevitable that it would seriously affect the Patient's breathing, particularly as the contents of the pillow were encased in a non-porous plastic covering. The evidence was, however, the Patient's breathing was not affected. 348Dr C's evidence that the pillow was forcefully applied for a period of "definitely 60 seconds" is, I think, implausible not only because the Patient would have suffered acute breathing difficulties and did not, but also because it is hard to accept that someone who has been spat on in the face by what appears to have been a considerable amount of spit, would spend 60 seconds placing a pillow over a patient's face before taking action to remove the spit. 349The other point to be made is that 60 seconds, in the circumstances of what allegedly occurred, is a long time. I think the incident occurred over the space of 5 -10 seconds. To misjudge the duration of the incident to the extent it was suggested - that it took at least six times longer than it did, introduces a doubt about the accuracy of Dr C's recollection. 350I am not suggesting in any way that Dr C was untruthful or that she exaggerated her evidence. Dr C presented herself as an honest witness who gave evidence to the best of her recollection. However, I note she said she was traumatised by the incident, which may have had the effect of altering her recollection to the point where she convinced herself that the pillow was forcefully applied to the Patient's face. In my opinion, seeing a pillow placed very close to a patient's face, especially an elderly person suffering from delirium, would have been a confronting experience for a young doctor and something she would never have expected to see. Moreover, Dr C said she felt intimidated and had lost her confidence after Dr A had instructed her to chart the Haloperidol, which made her vulnerable, in my view, to any further escalation to any further unpleasant and confronting experience 351I note that Dr C approached Dr D shortly after the incident to make a complaint to him. Dr D told the internal investigators that when Dr C reported the matter to him she could not be sure that the pillow had in fact come into contact with the Patient's face. According to the transcript of interview conducted with Dr D, Dr C had told Dr D "a pillow had been employed by Dr A to prevent the man from spitting further". Dr D further recorded that Dr C felt that the pillow was "potentially smothering" the Patient although "she couldn't tell me that that was actually what happened". Dr D further stated that: Again it sounded as though it was a dark environment and she couldn't give me any specific objective criteria that he was being smothered but she said that that was her concern from where she was standing. 352Dr C did not tell Dr D that the pillow was actually forcefully applied to the face of the Patient, or that it had been done so for 60 seconds or that it had occurred over two occasions. 353Dr C then recorded the events of the evening in the Clinical Notes. She did so a matter of hours after the incident had occurred. In those Notes, Dr C stated that: The ED registrar then attempted to use the pillow which had been behind the patient's head as a barrier between himself and the patient. 354The Clinical Notes do not record any alleged forceful application of the pillow to the face of the Patient for 60 seconds or otherwise. 355Dr C sought to explain that the reason why she did not record in the Clinical Notes that the pillow had been forcefully used was because she did not want a record to be kept of the incident, as she knew that it would have a serious impact on Dr A's career. However, by this time Dr C had already reported the matter to Dr D and knew that Dr D would be escalating the matter to higher levels within the hierarchy of the Hospital. 356About 1-2 days later, Dr C then completed an AIMS Incident Report in which she alleged that Dr A had forcefully applied the pillow to the Patient's face "whilst stating that he was not threatening the patient's airway to those present". This was the first time that Dr C made any complaint about the pillow being applied to the face of the Patient. Dr C then maintained her position in her record of interview in the internal investigation and in her affidavit that Dr C had forcefully applied the pillow, which was in contact with the Patient's face. In cross-examination Dr C conceded she could not actually see the pillow touching the Patient's face. 357Dr C's escalation of the seriousness of what she allegedly witnessed, after downplaying that seriousness in the first two of her reports made almost contemporaneously with the incident, creates further doubt in my mind about the reliability of Dr C's recollection. 358As I have noted, Dr B's evidence was that Dr A used the pillow to force the Patient's head back down onto the pillow. Her evidence was that this occurred over a period of about 5-10 seconds. Dr B said in her statement to the internal investigators: Dr [A] took the pillow from behind the patient's head as [the patient] was leaning forward trying to get up. Dr [A], using his left hand, pushed the patient into the bed with the pillow covering the patient's face. He held the pillow on his face for approx. 5 - 10 secs 359In her oral evidence, Dr B stated: The patient was sitting up in the bed and physically pushed back on to the bed with a pillow. 360Dr B's evidence was different from that of Dr C, RN1 and RN2 in that none of those persons made mention of the applicant using the pillow to force the Patient's head back down on the bed. Dr A, however, did agree that the Patient sat up to spit on him. Whilst RN1 said the Patient was "lunging about trying to sit up" her evidence was not entirely clear about how the pillow was used, except that she could not see whether the Patient's face came into contact with the pillow. More importantly, however, Dr B said she was standing on Dr A's left side at about the position of the Patient's waist. Dr C gave evidence that Dr B was at the patient's left lower limb. RN1 said that Dr B 'may have at some stage' been at the Patient's left leg. RN2 gave evidence that Dr B was standing at and holding the Patient's left leg. Dr A said he had asked Dr B to hold the Patient's left arm. My view is that Dr B was at a position between the waist of the Patient and lower end of the bed, but she may well have moved about between those points. 361Dr B said that "Dr A, using his left hand, pushed the patient into the bed with the pillow covering the patient's face." From Dr B's position I find it difficult to understand how she actually saw the pillow come into contact with the Patient's face. Dr B may have assumed it did because she saw the Patient's head go backward down onto the bed with a pillow following immediately thereafter. But Dr B said nothing about Dr A's right hand, which could easily have been on the Patient's shoulder and it could have been Dr A's right hand that was forcing the Patient back down and not the pillow held against the Patient's face. I note that Dr A stated that he used his right hand during the incident briefly on the Patient's left shoulder to stop him from getting up whilst he was holding the pillow as the spit shield. 362Additionally, Dr B's recollection of events was a little hazy in that in relation to the second time the pillow was used she could not recall who used the pillow. Dr B said, "It is not something I can now remember." In this respect, I note the first time Dr B recorded her version of the events in question was some two weeks after the incident. 363In her affidavit evidence RN2 stated: I had an unobstructed view of Dr [A] and I saw him use his left hand to hold the centre of the pillow and then hold it firmly down on the patient's face. ...I saw from Dr [A's] body movement that he was pressing it down and the pillow made contact with the patient's face. Dr [A] pressed the pillow down on the patient's face for about 4 to 5 seconds but I cannot be sure of the exact time. 364In her oral evidence RN2 stated: Dr [A] had his hands flat on the pillow. Dr [A's] upper body was turned in towards the pillow and then changed down towards the patient so the pressure was from the shoulders into the patient and through the pillow. I witnessed Dr [A] pushing the pillow on Patient 1's face for about five seconds. 365In the cross-examination of RN2, however, the following exchange occurred: Q. The pillow obstructed your sight of Patient 1's face, I think that's your... the pillow obstructed your sight of Patient 1's face; correct? A. Yes. ... Q. So is this your evidence, you didn't actually see the pillow come into contact with Patient 1's face but you assumed that because of the stance of Dr A? A. Yes. 366RN2's oral evidence was that the applicant had both hands flat on the pillow, which is different to the evidence of Dr C and Dr B, who both believed Dr A applied force to the pillow with one hand. RN1 believed Dr A held the pillow with one hand. 367In considering the reliability of RN2's evidence, she initially stated that Dr A used his left hand to hold the centre of the pillow firmly on the Patient's face. RN2, however, changed that evidence in quite a substantial way when she gave oral evidence and that was Dr A applied the pillow with force using both hands flat on the pillow. That was RN2's oral evidence about Dr A's stance and upon which she based her conclusion the pillow was forcefully applied because she did not actually see the pillow touch the Patient's face. RN2, however, was the only witness to say that Dr A used both hands flat on the pillow. In those circumstances, and because RN2 did not actually see the pillow touch the Patient's face and because she substantially changed her evidence, I do not feel able to place such reliance on RN2's evidence that it contributes to proving Allegation One. 368RN1 saw the pillow being held over the Patient's face, saw movement under the pillow and that the Patient "indented the pillow at some stage". However, RN1 "couldn't say whether it was directly on his face or whether it was hovering over it or whether it was right on his face because I was looking directly onto the pillow." Even if RN1 was concentrating on holding the Patient's leg, it seems to me she was able to see enough of what occurred to make a judgment about whether Dr A forcefully applied the pillow to the Patient's face. The indenting of the pillow and the movement of the pillow could have been caused by the Patient lunging about and not necessarily because Dr A was forcefully applying the pillow. 369 RN1's evidence could not constitute the basis of a finding that Dr A applied the pillow forcefully to the Patient's face.

No clinician present voiced concern 370At no time during the alleged incident did any of the other staff members present voice any concerns or attempt to remove the pillow or stop Dr A. It appears that at least Dr C and Dr B felt Dr A's actions placed the Patient at risk, but they said they were either frozen or felt too helpless to intervene. It is difficult to believe that clinicians working in an ED would be incapable of taking preventative action if they seriously felt that someone's safety, especially that of a patient, was in jeopardy. Dr A was indirectly criticised for not calling security. There is no reason why the other clinicians present, if such was their concern, could not have called security.

Applicant's record in treating patients 371The applicant has been a medical practitioner for 23 years. There is no evidence of any previous incidents of the applicant mistreating a patient. Dr A said he possessed specialist level airway skills, and considered that applying the pillow to the Patient's face in the circumstances would have put the Patient at the risk of aspiration and asphyxia, especially in view of his delirium and supine position. The respondent did not contradict that evidence. 372Accordingly, there is no evidence to suggest that Dr A had a predisposition towards mistreating patients.

No harm to Patient 373There was no evidence of any harm to the Patient. Despite it being alleged that the applicant forcefully applied a non-porous plastic encased pillow to the face of a 94-year-old man who was thrashing around violently, there was no indication that the Patient had become short of breath. The statement in the Chief Executive's letter of 6 November 2013 that the applicant had failed to acknowledge the possibility that the Patient may have been "psychologically affected" was pure speculation and carries no weight. 374If the allegation contained in Allegation One were true, it would amount at the least to an assault in respect of which the applicant would have been criminally liable. The Patient had been approached by the Police to inquire whether he wished charges to be pressed against Dr A. Apparently, the Patient declined to pursue any action and the Police did not take the matter any further. 375After the incident I note the evidence that Dr A transported the Patient to RESUS without the assistance of any of the other staff members. Dr A then remained with the Patient for the remainder of the evening, well past the conclusion of his shift, in order to ensure that the Patient was safe and was appropriately cared for.

Environment in which incident occurred 376The lighting at Bed 8 where the incident occurred was dim and the applicant's use of the pillow happened quickly, lasting no more than about 10 seconds. One scenario that cannot be discounted is that Dr A sought to use the pillow not with any violent intent, but as a spit shield and in the dim light and the speed with which the incident occurred, the witnesses believed Dr A was forcefully applying the pillow to the Patient's face. What may have confused the witnesses was that the Patient's face did come into contact with the pillow because he was violently moving about and "lunging", but that the contact was not a deliberate use of force by Dr A.

Risk assessment by Head of Emergency Department 377The Head of the Emergency Department, Dr G, conducted a risk assessment in the days after the incident. That risk assessment was conducted at a time before Dr A had any opportunity to give his version of events, but at a time after the various AIMS incident reports had been lodged by Dr C, RN1 and RN2. Dr G concluded that the risks arising from the incident could be managed internally, without the need to terminate or suspend the employment of Dr A. 378Notwithstanding the risk assessment, the recommendation by Dr G as to how the matter was to be managed was overruled. One cannot be critical about that because it was not Dr G's responsibility to deal with serious disciplinary issues at the Hospital. Nevertheless, that the Head of the Emergency Department considered any risks arising from the incident could be managed internally, and did not warrant termination of employment, is a matter to be weighed in the balance.

Medical Council investigation 379I mentioned earlier that the respondent had referred Dr A's conduct to the Medical Council. The Medical Council conducted its own review and determined that there were no "ongoing concerns" about the applicant's professional conduct. 380I should make it clear, however, that I do not rely in any way on the outcome of the Medical Council's review. The conduct of that review cannot, with respect, be compared to the thoroughness and extent of the adversarial proceedings before this Commission and it provides no assistance in determining whether the threatened dismissal of the applicant is harsh, unreasonable or unjust.

Whether threatened dismissal is harsh, unreasonable or unjust 381Given that I am not satisfied the respondent has discharged its onus of proving either Allegation One or Allegation Two, I consider it is unreasonable (as distinct from unjust) for the respondent to threaten to dismiss the applicant. 382I do consider the applicant used the pillow inappropriately as a spit shield, which was an affront to the Patient's dignity and disrespectful, although the respondent did not prove the Patient's safety was in jeopardy. I also consider the applicant engaged in poor decision making in his approach to managing the Patient and in his failure to carry out any risk assessment. The applicant's non-communicative attitude to the other staff also left a good deal to be desired from an experienced medical practitioner operating in an environment where collaboration and cooperation are essential. 383These matters, however, do not justify a threat to dismiss. The appropriate course is counselling and monitoring of the applicant's conduct as proposed by the Head of Emergency Medicine at the Hospital. 384I also consider a threat to dismiss that manifests into an actual dismissal would be harsh given that I am unable to find that Allegations One and Two have been made out. A dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted: Byrne & Anor v Australian Airlines. 385If the applicant was dismissed, it is unlikely that he would be in a position to complete his specialist emergency medicine training and complete his examinations for that purpose. These consequences would be harsh and are disproportionate given my findings in this matter. 386The respondent contended that there was no evidentiary foundation for the proposition that the applicant would find it very difficult to obtain another job as an Advanced Trainee in Emergency Medicine and complete his Fellowship. The evidentiary foundation is the affidavit evidence of the applicant. I am prepared to accept that evidence. 387The respondent accepted that Dr A's career would be "damaged" by his termination, although it did not venture any view as to the extent of that damage. In my opinion, it would be severe.

Return to the Hospital 388The Chief Executive's evidence was that the employment relationship with Dr A had irretrievably broken down and could not be repaired. He said the Health District had no confidence in Dr A because of the conduct he engaged in on 25 May 2013 and because of his reaction to the incident. 389Given my findings in this matter there is no basis upon which the Health District can have no confidence in Dr A. There was no other evidence that the applicant could not return to the ED at the Hospital or that the position he held is no longer available.

Conclusion 390As I said earlier, this has not been an easy matter to determine. The respondent's case was not one without any foundation and the applicant's evidence in a number of respects was unreliable and/or outweighed by the respondent's evidence. But in order to accept the respondent's case it is necessary that I "feel an actual persuasion" or a state of "comfortable satisfaction" that the respondent is correct. I do not consider either of those tests has been met. 391I have considered whether my finding that the respondent has not proven the pillow was forcefully applied to the patient's face is "glaringly improbable" or "contrary to compelling inferences": see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]. Having carefully considered the respondent's evidence in that respect I believe my finding is correct.

Costs 392The applicant has sought to be heard on costs. Within 14 days of the date of this decision the applicant shall file and serve written submissions on costs. The respondent has a further 14 days in which to reply. Unless a party seeks to be heard orally, the question of costs will be determined on the papers.

Orders 393The Commission makes the following orders: (1)The Health District shall not dismiss Dr A from his employment in accordance with its present threat to do so. (2)Within 14 days of the date of this decision the applicant shall file and serve written submissions on costs. The respondent has a further 14 days in which to reply. Unless a party seeks to be heard orally, the question of costs will be determined on the papers.

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: 26 September 2014